The rights of women in islam chapter 1

the rights of women in islam

 

 

 

 

 

BOOK ID 

Author ( s): Ayatullah Murtadha Mutahhari 

Publisher ( s): W. O. F. I. S. World Organization for Islamic Services Category: General Women Topic Tags: Women Womens Rights marriage

 

 

 

 

point Outlines general rights of women with special emphasis to marriage. Some of the areas covered are marriage proposal, engagement, temporary marriage, modernity, dowry, inheritance, divorce and polygyny. Miscellaneous information: nbsp; The Ahlul Bayt DILP team wishes to inform the reader of some important points regarding this digitized text, which represents the English translation of a work originally written in Farsi. Whereas no one can doubt the best intentions of the translator and the publishers in making this title accessible to an English speaking audience, the editing and digitization process of this book ( carried out by the DILP Team) has revealed issues in the quality of translation. Based upon this fact, the DILP team has taken the liberty to make grammatical corrections to make the text more readable and less ambiguous; spelling mistakes and typographical errors have also been corrected and an attempt has been made to improve the highly non- standard use of transliteration of Arabic names and terms. The online text is not an exact reproduction of the original translation. Users wishing to see the translation as it was published should refer to printed copies available in bookshops. Those who understand are advised to refer directly to the original text. The Ahlul Bayt DILP Team

 

 

 

The Author 

Ayatullah Murtadha Mutahhari, born 1920, was one of the most versatile Islamic scholars and prolific writers of recent times. He was deeply rooted in p: 1 traditional learning and enamoured of its exponents. He was a thinker who had fully absorbed a rigorous philosophical training. His work is marked by a philosophical clarity that particularly qualified him to deal with the fundamental problem of religious thought that forms the subject- matter of this book. Ayatullah Mutahhari received his elementary education in theology from his father, Shaykh Muhammad Husayn in his home town, Fariman. When the Ayatullah was twelve years of age he joined the Educational Centre at Mashad and pursued his studies there for five years. Then he proceeded to Qum, the great centre of Islamic education. He stayed there for fifteen years and completed his education in Islamic Beliefs and Jurisprudence under the supervision of the renowned philosopher Allama Muhammad Husayn Tabatabai, Imam Khomayni and many other distinguished scholars. Then he migrated to Tehran. During the period of his education the Ayatullah felt that the communists wanted to change the sacred religion of Islam and destroy its very spirit by mixing their atheistic views with the Islamic philosophy and interpreting the verses of the Qur' an in a materialistic manner. Of course, communism was not the only thing which received Ayatullah' s attention. He also wrote on exegesis of the Qur' an, philosophy, ethics, sociology, history and many other subjects. In all his writings the real object he had in view was to give replies to the objections raised by others against Islam, to point out the shortcomings of other schools of thought and to manifest the greatness of Islam. He p: 2 believed that in order to prove the falsity of Marxism and other ideologies like it, it was necessary not only to comment on them in a scholarly manner but also to present the real image of Islam. Ayatullah Mutahhari wrote assiduously and continuously from his student days right up to 1979, the year of his assassination. Much of his work has been published in and outside Iran. He has written a number of books not in accordance with his personal interest or predilection but with his perception of its need. Wherever a book was lacking in some vital topic of contemporary Islamic interest Mutahhari sought to supply it. The activities of the Ayatullah were intolerable for the followers of the atheistic schools and they, therefore, decided to remove him from the scene by terroristic methods. Eventually they succeeded on the 1st of May, 1979. His martyrdom was a great tragedy. When the sad news was conveyed to Imam Khomayni he could not control his tears. In his condolence message he said" : I have been deprived of a dear son of mine. I am lamenting upon the death of one who was the fruit of my life" . Thousands of Muslims escorted his funeral. He was laid to rest in Qum in the precincts of the Holy shrine of Lady Fatimah Ma' sumah. Ayatullah Mutahhari was a popular figure in the religious and literary circles of Iran. He served in the Tehran University as the Head of the Department of Theology and Islamic Learnings. At the time of p: 3 his martyrdom he was the president of the Constitutional Council of the Islamic Republic of Iran and was performing his duties in a very befitting manner. His works have been translated and published in French, Arabic, Turkish, Urdu and English. The Islamic Seminary has had the honour of publishing some of them.

 

 

Publishers Foreword In the Name of Allah the Beneficent the Merciful The famous Islamic writer, the great scholar, the late Shaikh Murtadha Mutahhari, may Allah bestow His mercy on him, was one of the most celebrated authors in Iran, who had the ability to put forward in the clearest way Islamic ideas pertaining to principles and law. Allah gave him both the power to think originally and the ability to explain his thoughts in an immediately understandable way in every subject he tackled, he was able to cover it comprehensively from all aspects; and those powers enabled him to reach his great position among Islamic writers in Iran. The extent of the loss to Muslims on his death is to the same degree as the benefit to them of his writings, all of which are at a high level of originality. It is a great pity that readers who are not acquainted with the Persian language are prevented from a direct contact with the works of Allamah Mutahhari, so our Organization has decided to endeavor to the best of their ability to translate and publish them. There is no strength and power except with Allah. We have previously published the translation of p: 4 Wilayah, The Station Of The Master and now we are presenting the second of his books to be translated Nidam- e- huquq- e- zan dar Islam ( The rights of Women in Islam, ) praise be to Allah. For the information of our reader this book was first of all given to a translator abroad and then this translation was examined by someone who has a first- hand knowledge of both the English language and literature and who was fortunately acquainted with Persià n, who went through every page correcting it and making necessary addition and footnotes. In some places where the first translator had not understood the text, the translation was done again from the original. We can thus say with praise to Allah, that we have spared no effort in the translation of this work. We can only pray to Allah that He make this translation as beneficial to the readers as He has made the original. We beseech Allah to inspire us with goodness and guidance to keep us away from error and fault. For He is the best guide, the best helper. World Organization For Islamic Services ( Board of writing, Translation and Publication) 29/ 8/ 1400 AH 12/ 7/ 1980 AD Tehran — Iran

 

 

 

 

 

 

Preface 

The requirements of our age is to make it necessary to examine and weigh once more many matters about which it is no longer enough to accept the old assessments. The system of family rights and responsibilities is one of these matters. In this age for reasons to be pointed out later, it has been commonly supposed p: 5 that the basic questions in this area are the liberation of Women and the equality of their rights with men. All other problems are off- shoots of these two matters. However, in our opinion the most fundamental problem concerning the system of family rights, or at least one which is on the same level as the basic problems is to decide whether the family system is independent of other social systems, and whether it employs a special logic and special criteria different from the logic and criteria of any other social institutions; or whether no kind of disparity exists between this social unit and other social units. Do the very same logic, the very same philosophy, and the very same criteria govern this unit as govern other units and institutions? The root cause of this doubt is, on the one hand, that the two main parties of this unit are the two different sexes, and, on the other hand, there is the succession of sons and daughters. The creative process has established the members of this unit with dissimilar and unequal dispositions, and with differing and with differing qualities and temperaments. The social structure of the family is one which is semi- innate and semi- conventional, that is to say it occupies an intermediary position between an instinctive social structure, like that of bees and ants, all of those whose behavioral limits, rights and laws are determined by nature, and a social structure based on convention, like that of human civic society which has a p: 6 smaller ‘ natural’ or instinctive component. The ancient philosophers, as we know, counted the philosophy of family life as an independent branch of “ practical philosophy”, and believed that this department of human life had a separate logic anti criteria. Plato in his Republic, Aristotle in his Politics, and Ibn Sina ( Avicenna) in his ash- Shifa’, has all dealt with this subject from this perspective and from this angle. As regards the rights or women in society, a doubt and questioning also arises, of course, as to whether the natural and human right of men and women are identical, or not identical. In other words, whether creation and nature, which has granted one series of rights to mankind, has arranged these rights bisexually or unisexual; whether being male or female is relevant to social rights and responsibilities or whether these rights are the same for both sexes in the eyes of nature and in the logic of Creation. In the western world, subsequent to the seventeenth century, there was a movement in the area of social affairs, which took place in the wake of scientific and philosophical developments, and which wail under the name of ‘ Human Rights’. The writers and thinkers of the seventeenth and eighteenth century propagated their own ideas regarding ‘ natural, intrinsic and undeniable human rights with admirable tenacity. Rousseau, Voltaire and Montesquieu were among this group of authors and thinkers. Human society in general is deeply indebted to them. It may even be claimed that human society is no less indebted to p: 7 them than to the great discoverers and inventors. The basic point to which this group gave their attention was that a human being by his nature and by reason of his birth and disposition, possesses a series of rights and liberties. No person or group can, by any means or under any pretext, deny these rights and liberties to any individual or people. The owner of these rights himself cannot, by his free will and inclination, transfer them to anybody else and strip himself or deprive himself of them. Everybody, whether he is a ruler or ruled, white or black, rich or poor, is equal and alike with regard to these rights and liberties. This intellectual and social movement bore its fruits firstly in England and then in America and afterwards in France through revolutions, changes in the form of governments, signatures to petitions and gradually these ideas spread to the other countries of the world. In the nineteenth century new ideas with regards to the economic, social and political rights of human beings sprung up, and other changes took place which culminated in the appearance of socialism and the requirement of an allocation of a share in profits to the proletariat, and the transfer of government from capitalists to those who defended the working class. Up to the end of the nineteenth and the beginning of the twentieth century, what was said about human rights and what practical steps were taken were connected with the rights of the people with respect to governments, p: 8 or else with the rights of the worker and the proletariat with respect to the employer class and the overlords. But in the twentieth century, the question of the rights of women as opposed to the rights of men arose, and, for the first time, in the “ Universal Declaration of Human Rights”, which was drawn up after the second World- war in 1948 by the United Nations Organization, the equality of women and men was explicitly declared. In all the social movements of the west, from the seventeenth up to the present century all ideas centered around two things: liberty and equality. Keeping in view the fact that the movement for women’ s rights in the west followed the same sequence as the other movements, and although the history of women’ s rights in Europe was full of extraordinary hardships as far as their liberty and equality was concerned, still in this case also, nothing other than‘ , liberty and equality’ was discussed. The pioneers of this movement considered the liberty of women and the equality of their rights with those of men to be the completion and fulfillment of the movement for human rights that had been the central idea since the seventeenth century. They claimed that without securing the liberty of women and establishing equal rights for them and men, any reference to human rights and freedom was meaningless. Moreover, they believed that all difficulties within the family arose from the absence of freedom for women and the inequality of the rights of women p: 9 and men, and that with the securing of this objective all difficulties in the family would be solved in one swoop. In this new departure, that which we call “ the fundamental question is the system of family rights”, that is the question of whether this system is naturally an independent system with its own logic and standards separate from the logic and standards social institutions or not, was entrusted to oblivion. That which engaged people’ s minds was the extension of the principles of the liberty and equality of women with respect to men. In other words, in the matter of the rights if women, also, the only topic for discussion was the “ natural, inalienable, irrevocable rights of man”, and nothing more. Everything resolved around the one matter that man and woman are partners in humanity, that woman is a genuine human being, and must therefore enjoy the alienable and undeniable rights of a human being, just as a man, and in equality with him. In some of the, chapters of this book there is a thorough discussion of the sources of natural rights, and we have proved there that the basic foundation of natural rights is nature itself. If the human being enjoys certain special rights which the horse, the sheep, the bird, and the fish do not share with him, it is due to his nature, origin and creation. If all human beings are equal in natural rights and every one of them must live in “ liberty”, it is an order p: 10 issued in the text of creation itself. There is no other proof. The intellectuals who were supporters of equality and liberty as the natural rights of human beings likewise had other argument than this. Now let us see why the matter which we have called the fundamental question in the system of family rights has not attracted attention. Has it been discovered in the light of modern science that the difference and variation between man and woman is a simple difference in constituent organs and that this has no effect on their fundamental physical and spiritual structure, the rights which are dependent upon it, and the responsibilities which it engenders? And is this why no separate chapter has been opened for them in modern social philosophies? It so happens that circumstances are just the opposite. In the light of modern discoveries and advances in the biological and psychological sciences, the differences between the two sexes have become clearer and better documented. In some of the chapters of this book we have discussed this, and have quoted the research findings of biologists, physiologists and psychologists. It is a cause for amazement that in spite of all this, the basic problem has altogether been left to oblivion. The origin of this neglect is, perhaps, that these developments took place very precipitately, and the result was that, although it took certain misfortunes away from woman, it brought, as a gift, other sufferings and misfortunes for her and for the whole of society. We shall, in the p: 11 chapters of this book, see that woman in the west was deprived of even the simplest and most common- place rights up to the early part of the twentieth century, and that only at the beginning of the twentieth century did western man begin to think of redressing the situation; and since this movement was the tail end of other movements in the field of “ equality” and “ liberty”, they expected every miracle to come from the spirit of these two words. They ignored the fact that equality and liberty depends on the relations of human beings with one another, and from the fact that they are human beings. In academic terminology: “ Equality and freedom are the right of man according to his degree of being man” . Because woman is human being, she is created free like all other human beings, and so she shares in equal rights. But woman is a human being with particular conditions, and man is a human being with other conditions. Man and woman are equal in their being human, but they are two kinds of human being with two kinds of characteristics and two kinds of psychology. This difference is not the result of any geographical, historical or social factors; rather it is sketched out in the very plan of creation. Nature had a purpose in these two different conditions, and so whatever step is taken against nature and the order of things is bound to produce an undesirable toll. Just as the liberty and equality p: 12 of human beings, both men and women, has been revealed to us from nature, so we must look to nature to inspire us concerning the uniqueness or the duality of the right, of women and men, and also as to whether the family unit is at least a semi- natural social unit, or not. One point at least can be sketched out is the bisexuality of animals, including man, merely accidental, or is it a part of the plan of creation? Is the dissimilarity in the two sexes merely on the basic level of constituent organs; or, in the words of the French biologist Alexis Carrel is every one of the cells of a human being a sign of his or her sexuality? Do man and woman each have their own special mission in the logic and language if innate disposition? Are rights unisexual or bisexual? Are morality, and being brought up, uni- sexual or bi- sexual matters? What about punishment? What about responsibilities and vocations? In this development, it was forgotten that there are other matters besides equality and liberty to be taken into consideration. Equality and liberty are necessary conditions, but they are not sufficient. An equality of rights is one thing, but an identicalness of rights is something else. The equality of the rights of man and woman from the point of view of their material and spiritual value is one thing but their parity, uniformity and identicalness is another thing. In this development, intentionally or unintentionally‘ , equality’ is taken to

mean ‘ identicalness’ and ‘ equivalence’ or ‘ uniformity’, Quality has been eclipse by quantity in the attempt to remember woman’ s ‘ man- ness’, her ‘ woman- ness’ has been, forgotten. This inadvertence, in fact, cannot be counted merely as a philosophical inattentiveness arising out of undue haste. There were other factors at work also that wanted to take advantage of this ‘ liberty’ and ‘ equality’ of women. One of those factors was that the aspirations of capitalists were involved in this current. Because factory owners wanted women to be attracted horn from their homes to the factories, and because they wanted to benefit from their economic power, they took up the banner of the rights of women, their economic independence, their liberty, the equality of women’ s rights with those of men and it was only these people who could give these demands a legal acceptance. In chapter nine of his ‘ The pleasures of Philosophy’, after quoting some of the contemptuous ideas of Aristotle, Nietzsche, Schopenhauer, and some of the holy books of the Jews about women and after pointing out that although the liberty of women was also talked about during the French Revolution, without there being any practical change in their position, Will Durant remarks“ : Until 1900 or so a woman had hardly any rights which a man was legally bound to respect( ” . p. 131). He then writes about the causes for the change in the status of women in the twentieth century“ : The emancipation of ‘ woman’ was an incident of the ‘ Industrial Revolution’. He continues in his own p: 14 words: They ( women) are cheaper labor than men; the employer preferred them as employees to the more costly and rebellious males. A century ago, in England men found it hard to get work, but placards invited them to send their wives and children to the factory gate… The first legal step in the emancipation of our grandmothers was the legislation of 1882, by which it was decreed that thereafter the women of Great Britain should enjoy the unprecedented privilege of keeping the money they earned[ . 1] It was a highly moral and Christian enactment, put though by the factory- owners in the House of Commons to lure the ladies of England into attendance upon their machines. From that year to this the irresistible suction of the profits motive has drawn women out of the drudgery of the home into the serfdom of the shop( ” . ibid. pp. 131— 132) The development of mechanization and the ever- increasing growth in production at a rate greater than the level of the actual needs of people, the necessity of persuading consumers through thousands of deceptions and frauds, the urgency with which all auditory usual, psychological, sensory, aesthetic, artistic and venal means to transform man into an involuntary agent of consumption, further required that the capitalist should take advantage of woman’ s existence; not of woman’ s physical strength or her work power as a simple worker sharing with man in production, but rather of her power to attract with her beauty, by trading in her honor and respect, through her power to p: 15 entice, to captivate minds and wills and to transform them, to impose consumption on consumers. It is clear that all this was done in the name of her ‘ liberty’ and her becoming ‘ equal’ with man. Politics also did not lag behind in making use of this factor; one can read the circumstances of this regularly in newspapers and magazines. In all these things, the existence of woman is exploited and woman is used as a means for accomplishing the aims of man: and all this under the cover of ‘ liberty’ and ‘ equality’. Clearly the young man of the twentieth century did not fail to avail himself of this precious opportunity, He stopped taking on the traditional responsibilities with regard to women, and made the seeking of a partner something cheap and gratuitous, seizing her in his talons. Then they shed more crocodile tears than before over the misfortunate of women and the unjust discrimination against her. And, finally, so as to avail themselves more fully of the pleasures of this world they delay their marriage until they are forty and later; and then even prefer to remain bachelors. There is no doubt that our century has removed a whole series of misfortunes from women, but the point is whether, it has not actually brought another series of misfortunes as a gift. What is the reason for this? Is woman condemned to one of these two calamities, and forced to choose one of them, or is there nothing to hinder her from banishing p: 16 her old misfortunes, as well as the new misfortunes? The fact is that there is no compulsion or inevitability. The misfortunes of the olden days were mostly caused because the fact that a woman is a human being was forgotten, and her modern misfortunes are because, intentionally or otherwise, the womanliness of a woman, her inborn tendencies and nature, her mission, the axis around which she turns, her instinctual needs and her special capabilities are totally ignored. It is really strange that whenever the dissimilarity in the innate characteristics and nature of women and men is brought up, a section of people interpret this as meaning the defectiveness of woman and the perfection of man, and ultimately as something which necessitates a series of benefits for man and a series of privations for woman, forgetting that defectiveness and perfection is not under consideration. The scheme of creation did not seek to create one perfect and the other imperfect. After their logical and wise interpretation, these people exclaim “ All right, since nature was so cruel to woman, and created her weak and imperfect, should we aggravate the situation and add injustice to injustice? If we consign woman’ s natural disposition to the realms of oblivion, will we not make her more human? The situation, incidentally, is just the reverse. Indifference towards the natural and innate disposition of woman has entailed the violation of her rights. If man confronts woman and tells her“ : Now you are one and I am one. All task, duties, profits, rewards and p: 17 punishments will be alike and equal, and in all difficult, heavy work you will be my partner and receive compensation in proportion to your work force; do not expect any special respect and support from me; be responsible for all your living expenses; share with me the expenses of children; defend yourself against all dangers and perils; spend as much on me as I do on you……”, that is, the occasion for woman to throw in the sponge, because her labor strength and productive power is naturally less than that of a man, and the drain on her earnings is more. Besides, her monthly period, the inconveniences to her during pregnancy, the difficulties of labor and the bringing up of the child, have all placed her in a situation where she is under the protection of man with fewer responsibilities and more rights. This is not confined to human beings alone: all animals that live in pairs behave like this. In all these species the male instinctively rises up to protect his female partner. If the natural and innate disposition of both sexes is kept in view, and their equality in being human and in the shared rights of humanity is remembered, then woman will find herself in a very favorable position neither will her person nor will her personality be crushed. Because of inattention we find that the natural, innate circumstances or the two sexes are forgotten and in the end everything depends on liberty and making things equals; it would p: 18 be hotter to look at those people who, prior to us, started out on this mute, and have reached the end, and see what they have said and written. In the magazine Khandaniha (“ Things Read” no 79, year 34, 4th Tir, 1353) there is an article from Mahnamah Shahrbani under the title of “ The Adventures of Women Workers in American Society”. It has been translated from a magazine called Coronet. This article is detailed and is worth reading. It begins with the grievances of one woman. The writer describes how, in the name of equality between man and woman, the allowances that used to be made for women workers no longer exist. For example, they used not to be required to lift any weight more than 25 lbs ( 12 kilos) while there was no such limit for men workers. She says: the working conditions in the General Motor Factory, in Ohio State, or, to give it a better name, the place where, at present, 2, 500 women are toiling in wretched conditions, have been changed ‘ ” …. The said woman describes herself attending to a very powerful steam- engine or cleaning a 12 kilogram metallic oven which, shortly before, a strong muscular man had set in its place, looked at it and said to himself“ : I am all worn out” ! She says that every minute she has to lift up onto a hook a 25 to 50 inch lever weighing over 35 lbs. Her hands are always swollen and aching. This article afterwards narrates the grievances, p: 19 anxieties and apprehensions of another woman, whose husband is a sailor in the navy. Recently the Admiral took the decision that a number of women would be employed to work on board a man’ s ship. She writes“ : Meanwhile the naval authorities sent a ship on duty with 40 women and 480 crew. When the ship returned after her first mixed sea voyage to the port, the excitement and anxiety amongst Crew members was such that an inquiry was held, and it was soon discovered that not only had many love affairs developed during the voyage but that most of women had also had sexual relations with several man, not just one” . The article continues that in the State of Florida the worry after ‘ liberation’ was that widows would suffer, because one of the judges of that State, called Thomas Testa announced that the law that exempted widows from paying income- tax on sums up to 500 dollars was null and void. The judge considered that this particular law amounted to a discrimination against men. Then it says that Mrs. MacDaniel has aching hands, Mrs. Stone ( whose husband is a sailor) is anxious and apprehensive, and the widows of Florida have been fined; all of them have had their taste of freedom. For a large number of them the question arises as to whether women have lost more than they have gained. As of now there is no purpose in further discussion because the game has already started, and the spectators have just managed p: 20 to find their seats. It has been resolved that this year ( 1974) the twenty- seventh amendment in the Constitution of America be passed, and according to that amendment the showing of any preference on the basis of sex becomes illegal. Thus the assertions of Dr, Rosku Bavand, Professor of Harvard Law College, that the freedom of women will be the source of regrettable results for the situation of women’ s law in America, will come true. One of the senators from North Carolina, Mr. G. Irwin, after studying mixed American society were rights were equal declared that family laws should all be changed. No man should any longer be held legally responsible for covering family expenses. The magazine writes that Mrs. McDaniel says that one of the women- workers, because of lifting a heavy weight, became afflicted with inner bleeding“ . We want to return,” She says“ , to our previous position. We want men to treat us as women and not workers”. She adds that it is a very simple matter for the upholders of women’ s liberation to sit in their plush drawing rooms and declare that men and women are equal, because they have never visited any factories. They do not realize that most if the wage- earning women of America must like herself, work and drudge in factories. She further says that she does not want this equality, because she cannot carry out the job which is meant especially for men. Men are physically stronger than women, and if she were called upon to p: 21 complete in work with them and her work were compared, she would prefer, on her own behalf, to leave the work. The concessions which the women- workers of Ohio have given up are more than the privileges and benefits which they got through the law of protection for workers. She finally says that women have forsaken the individuality of womanhood and that she cannot understand what they have gained since their ‘ liberation’. It is possible, of course, she says, that the position of a limited number of women may have improved but working women are decidedly not amongst those. This was a short summary of the article. From the contents of the article it is evident that these women, because of the troubles that have been imposed on them in the name of liberty and

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[1]: In his comments on the Civil Law of Iran, Dr. Ali Shaygan (p. 266) writes: “The independence that a woman has with respect to her own possessions which Shi'ite jurisprudence acknowledged from the very beginning did not exist in Greece, Rome or Germany or in the law of most countries until recently. She was forbidden to exercise any right of ownership over her property, just like a minor, a lunatic or an interdicted person. In England, where in the past the personality of a woman faded into insignificance before the personality of her husband, two acts were passed, one in 1870 and the other in 1882 AD. , called the law of the married woman’s right to ownership, which lifted this prohibition from women.

 

 

equality, have lost patience to such a degree that they are now the enemies of these two words, little understanding that these two words are not evil in themselves. Woman and man are two stars in two different orbits. It is not for the Sun to over take the Moon, nor does the night outstrip the day. They float each in a heaven( . Qur’ an 36: 40[ ) 1] The basic condition for the happiness of both man and woman, and, in fact, for the whole of human society, is that each of the two sexes should continue to move in their own orbit. Liberty and equality will be of benefit to them as long as neither of them leaves his p: 22 or her natural orbit and direction. What has sown trouble in that society is that they have risen up against the natural order, and nothing else? What we are claiming is that the question of the system of rights for woman in the home as well as in society should once again be assessed and that we should not be satisfied with the assessments of the past. We mean that we should firstly take nature as our guide, and secondly draw the maximum benefit from the experiences of the past and the present centuries, whether good or bad. It is only then that the development of rights for women will, in its real sense, be fulfilled. The Holy Quran is accepted by its friends and its enemies as the upholder of the rights of women. Its opponents accept at least this much, that the Qur’ an in times of revelation took long steps forward for the benefit of women and for their human rights. But the Qur’ an never neglected the womanliness of women and the manliness of man in the name of restoring woman to the status of a human being and making her the partner of man in humanness and in human rights. In another words the Quran looked at woman as she is in nature. In this respect there is complete conformity between the decrees or the Qur’ an and the decrees of nature. These two great books of God, the one created and the other compiled, coincide with each other. In p: 23 following articles, if they can do something useful and new, there will be found an exposition and explanation of this conformity and harmony. What is now before the respected reader is a collection of articles which the author wrote in special circumstances in 1345 ( S. H) 1966/ 7 A. D; . they were published in the magazine Zan- e- ruz under the heading Zan dar huquq- e- Islami ( Woman in Islamic Rights). The articles were read with much interest. When those people who do not know the background, and who were not involved at the time, hear that these articles were published for the first time in that particular magazine, they will certainly be surprised that I chose the above magazine for their publication. They may be also surprised that magazine consented to publish these articles without any interference or cuts. It is therefore necessary to mention the circumstances of the publication of these articles[ . 1] In 1345 ( H. S, ) . 1966/ 7 AD, . the climate of magazines and periodicals, especially women’ s magazines, saw a sharp rise in temperature caused by the discussion of changes in the Civil Law in connection with family rights. As most of the proposals that were put forward were contrary to the actual text of the Qur’ an, they naturally arose uneasy feelings amongst the Muslims of Iran. In the midst or this, Judge Faqid Ibrahim Mahdavi Zanjani caused more agitation than anyone else and added fuel to the fire. He drew up a bill for this purpose, containing forty articles and got it published in the above p: 24 named magazine. The magazine published the article with blaring headlines and attached what were in those days called “ coupons”, requesting its readers to offer their opinions regarding those forty proposals. The said writer, by the way, promised that in the course of a series of articles in the same magazine, he would put forward his arguments in support of his forty proposals. At about that time, I received a telephone call from a respected and well- known Islamic centre in Tehran who expressed their opinions, and in a meeting with the editors of the Kayhan and Itila’ at [ 1] or publishing houses, I made reference to some of the matters published in their women’ s publications. The editors stated that if I had anything I wanted to write I could give it to them, and they promised that my articles would be published in entirety. After they had proposed this, the two, gentlemen made a suggestion. They said that if time and circumstances permitted, I could go through those magazines and make some necessary notes about each issue. I said that I was not ready to write comments on every issue, but that since Mahdavi promised to write a series of articles in defense of his ‘ forty articles’ in Zan- e ruz, I was ready, during the publication of that series, to make my comments on those forty articles on the opposite page of the same magazine, so that both ideas could be exposed to the public. The gentlemen asked me to give them time so that p: 25 they might once again contact the Directors. Once more they contacted me on the telephone and informed me that the magazine had agreed. After this exchange I wrote a letter to that magazine declaring my readiness to defend the Civil law in so far as they were in agreement with Islamic law, and requested them to publish my articles in the magazine alongside the articles of Mahdavi. I incidentally reminded them that in case the magazine agreed to my suggestions, they should publish my letter, as it was, with their notice of consent. The magazine agreed and printed that very letter of mine along with their notice of consent in their issue no. 87 dated 7th Aban, 1345 ( H. S( ) . 29. 10. 1966, ) and the first article appeared in issue no. 88. During my previous studies about the rights of women, I had read a book written by Mahdavi, and for some time I had been conversant with his logic and that of others like him. Besides that, I had been deeply interested for many years in the subject of the rights of women in Islam so I had ample material with me on the subject and I was fully prepared. The articles by Mahdavi were published and my articles were given the space alongside his articles. Naturally, I had to start from where he started, but it soon proved too difficult for him to carry on with the articles. It was not more than six weeks later that he died as the result of heart attack p: 26 and was thus freed from writing the replies for ever. During that period of six weeks these articles had made their mark. Those readers who had been interested in the articles appealed to me and to the magazine to continue the articles. This appeal was agreed to and thirty- three articles appeared in the magazine. These were the circumstances of the publication of these articles. Although in these thirty- three articles only a part of the matter that I had in mind was dealt with and much remained to be discussed, due to my tiredness and certain other things that diverted my attention elsewhere, I had to stop writing the series. Those who had read the articles with interest have been pressing all the time for the publication in book form. On my part, since I wanted to finish off the task and to publish some where a complete work on the system of women’ s rights in Islam, I did not agree to the simple reprinting of the articles. At last, when I felt that I could not expect to complete the work, I decided to be content with what there was. In this series of articles, the aspects of the problem that have been dealt with are: proposing; fixed- term marriage ( mut’ ah; ) woman and social independence; Islam and the modernization of life; the status of women in the Qur’ an; self- respect and human rights; the natural foundations for family rights; the differences between woman and man; dowry; maintenance; inheritance; divorce; and polygyny. Other aspects of p: 27 the subject that remain to be discussed and for which I have study- notes already prepared are: the right of the man to maintain order in the family; the right of guardianship of a child; the period of iddah for women between marriages and its philosophy; women, ijtihad ( competence in Islamic jurisprudence) and ifta( ’ giving legal opinions; ) women and politics; women and the appointment of judges; the education of women and ethics; women’ s dress; sexual morality; honor, chastity, modesty etc; . motherhood; women and out- door work, and a number of other matters. If I am favored with an opportunity by God, I shall collect together and edit this part as well, and publish it as the second volume of this book[ . 1] Requesting success and guidance from Allah; Murtada Mutahhari. 28th Shahriwar 1353 2nd Ramadan- ul- mubarak, 1394 19th September, 1974

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[1]: لَا الشَّمْسُ یَنْبَغِی لَهَا أَنْ تُدْرِکَ الْقَمَرَ وَلَا اللَّیْلُ سَابِقُ النَّهَارِ ۚ وَکُلٌّ فِی فَلَکٍ یَسْبَحُونَ 

[1]: Zan-e ruz (“Modern Woman”) used to be a rather glossy, western-style woman’s Magazine. It is s published, but, of course, with a more independent and Islamic editorial policy. (Tr. ) 

[1]: Both large tabloid publishing houses, printing both newspapers and magazines (Tr. ) 

[1]: Unfortunately it was never published.

 

 

 

 

 

Introduction 

point 

I am glad that the magazine Zan- e- ruz has accepted my request to discuss the forty- point proposal for amendments to sections of the Civil Law of Iran pertaining to, and connected with, family matters. The magazine has recorded its willingness in its next issue to publish this series of articles on the strength of my message. I very much value this opportunity which will give me an occasion to reveal to young people one aspect of the social philosophy of Islam. I hope to enlighten their minds so that they may comprehend the Islamic concept regarding the problems connected with family life. As I mentioned in my letter, I did not intend to take a stand in defense of p: 28 the existing Civil Law, holding it to be perfectly, thoroughly and a hundred per cent in accordance with the Islamic Law and with true social standards. I myself perhaps entertain certain misgivings about them, and I do not either want to claim that the custom in this particular domain prevalent amongst the majority or our people, are proper or justified. On the contrary, I even point out irregularities and confusions in family relations, and believe that basic reforms are necessary in this connection. I would not, however, put all the blame on the Civil Law of Iran, like the writers of the book Criticism of the Constitution and Civil of Iran [ 1] and another book, The Sacrament or the pact of marriage [ 2] I do not see any reason to exonerate the people entirely. I also do not accept the idea that the defects and flaws in the Civil Law are due to its being in conformity with the Islamic jurisprudence and similarly do not think that the only way to reform is to bring about changes in the Civil Law. That part of the Islamic law about the rights of husband and wife, their treatment of each other and of their offspring and outsiders, has also been attacked, and a proposal for its change has also been put forward. I shall deal with these one by one in this series of articles and shall prove that these laws are in complete conformity with subtle psychological, natural and social objectives. In these laws p: 29 the status and dignity of both man and woman has been fully safeguarded. If the laws are followed and scrupulously executed, they are sure to establish the best of family relations. With the permission of my esteemed readers, I wish to lay before them a few points before I start discussing the main subject: 1. Family relation, A world problem point The problem of family relations in our age is not so simple and trivial as may be resolved by filling up questionnaires by boys and girls by holding seminars — like the seminars I saw and heard of, and the level and standard of intellect that was displayed in them, which is not peculiar to our country. Other nations have also not been able to find a solution to the problem, nor do they claim to have found one. The philosopher Will Durant, the well- known writer of The Story of Civilization, writes“ : If in imagination we place ourselves at the year 2, 000, and ask what was the outstanding feature of human events in the first quarter of the twentieth century, we shall perceive that it was not the Great War, nor the Russian Revolution, but the change in the status of woman. History has seldom seen so startling a transformation in so short a time. The ‘ sacred home’ that was the basis of our social order, the marriage system that was our barrier against human passion and instability, the complex moral code that lifted us from brutality to civilization and courtesy, are visibly caught in that turbulent transition which p: 30 has come upon all our institutions, all our nodes of life and thought( ” . The Pleasures of Philosophy New York, 1953, p. l29) Today, similarly, when we are living in the last quarter of the twentieth century, the lamentations of western thinkers are all the more articulate when they witness around them the break up of family ties, the weakening of the foundations of marriage the evasion of young people in accepting the responsibilities of marriage, the dislike of being a mother, the dwindling of paternal and maternal affections, indulgence in the satisfaction of temporary passions instead of love, the ever- increasing incidence of divorce, the galloping increase in the number of illegitimate child with unity and sincerity being very rare thing in married couples. Should we be independent or follow the west? It is regrettable that quite a number of uninformed people have the impression that the problems connected with family relations are like the technicalities of taxi- driving plumbing, electricity etc. European experts solved these technical matters years ago; we are the people who do not have that efficiency and capability and so, they think, we should follow and imitate them as early as possible. This is a totally wrong idea. As far as the problems under discussion are concerned, westerners are more preoccupied than we are ourselves, and the wailings and cries of their intellectual are louder. Leaving aside the question of the education and instruction of women, western thinkers are in all matters concerning women more perturbed than we are ourselves and have less satisfaction in the contentments of family p: 31 life. Historical determinism Another section of our people think that the lack of warmth and attachment in family ties and the creeping in of destructive influences is the effect of the liberation and undue freedom of women; that freedom, according to them, is the unavoidable result of industrial life and advancement in learning and civilization. It is the force of history, and there is no alternative, they say, except to tolerate and endure this confusion and disorder. The excellence and dignity of family life that was current in former days, they add, should be forgotten for ever. If we hold such a view, we have a very superficial and erroneous view. We agree that in the west, industrial life did affect and still does affect family ties, but what primarily interrupted the balance of orderliness in family life are two other things apart from, that. Firstly, there were primitive, oppressive and unjust laws for women in Europe. These laws were in force till the present century. The helplessness of women can be gauged from the fact that it was in the nineteenth and at the beginning of the twentieth century that woman was legally acknowledged for the first time to be capable of owning property. Secondly, those persons, who undertook to ameliorate the condition of women and raise their status, happened to use the same method that is being adopted at present by some of our so called intellectuals. The outlook put forward in this forty- point proposal is one of such examples. These people have, so p: 32 to say, while desiring to improve her eyebrows, actually deprived the helpless woman of her eyesight. The obsolete laws of yesterday’ s European together with the new amendments to them are thus more responsible for the chaos and disorder than industrial life. In such circumstances, it is not in the least necessary for us, Muslims of the east, to follow strictly in their footsteps and go the way they go, and tread the nasty path they tread. We should remain always cautious towards western life- styles. While making use of, and acquiring. Those of their sciences, arts and technical subjects, and also those parts, of their social behavior which are excellent and commendable, one should also refrain from aping and imitating them in all their customs, habits and especially laws. These laws have been a source of innumerable miseries for themselves; and reforms in the Civil Law of Iran and their being brought into line with European laws means, in practice, sharing those miseries with them. 2. The constitution and ourselves Apart from the fact that the said proposals are at once devastating and against psychological, natural and social exigencies, as will be explained later on, there remains the question: what about their conformity with the Constitutional Law of Iran? The Constitution of Iran clearly mentions that any law or proposed law which stands in contradiction with the Islamic Law is void and cannot be passed in either of the two Houses of the Iranian Parliament. The matter incorporated in these proposals is, on the face of it, in p: 33 contradiction with the Islamic law. Can those westerners whom our worshippers of the west blindly follow ever imagine turning their own Constitution into play- thing like this? Besides religious considerations, the constitution of every country has a special sanctity for the people of that country. The Constitution of Iran also has a special sanctity for the Iranian nation as a whole. Can the Constitution of Iran be trampled under- foot by seminars, by the printing of questionnaires, and by the bobbing up and down of members of Parliament? 3. The attachment of the Iranian nation to religion If, for the time being, we leave the discordance of the proposal with the Constitution alone, and forget everything else, one thing can never be forgotten that nowadays too, the strongest sympathy which governs the mentality of Iranians is their Islamic sentiments. With the exception of a very limited number, who have traversed all limits and readily supports any disorder and confusion, the great majority of the people follow the stipulations of religion. Against the prognostications of some people, even modern education and training has not caused any estrangement between this nation and the religion of Islam. In spite of the fact that religion in its true sense is not being propagated, and capitalism which is contrary to Islam, is more often presented, the people who have had a modern education, and students, are becoming more and more inclined towards Islam. Now, I ask, how will the proposed laws suit this mental background, when that background is necessarily there whether you like it or not? To p: 34 be more explicit, when the Civil Law of the country is not in conformity with the aspirations of the people and with the clear commandments of the shari’ ah of Islam, what can be the result? Suppose that due to certain differences and anger, woman files a suit in a Court of Law, and, against the will of her husband, is granted a degree of divorce, and after wards marries another person. These persons, the new husband and wife, although they consider themselves legal husband and wife under the civil law of the country, will in the depth of their religious conscience, consider each other as strangers. They are bound to feel pangs of conscience, however occasionally and stealthily, and consider their association sinful, their children illegitimate, and themselves deserving the punishment of death. Now, imagine in what a miserable psychological situation they will be placed; what will be their position and the position of their children in the eyes of their religious minded friends and relatives. We cannot possibly change the religious conscience of the people by legislation and amendments to the law, fortunately or unfortunately, the convictions of the majority of these people are so strong that they cannot be quit of their religious sympathies. If you were to invite an expert in law and psychology from a foreign country and discuss with him and tell him what you want to legislate and what the background and the convictions of your people are, do you imagine that he would agree with you? Would he not say that such steps are bound to create innumerable mental and social miseries? It is a great mistake to compare this kind of law with penal laws as regards how bad the effects resulting from them are. They are as different as the earth is from the sky. The impact which results from changes in and abrogation of the penal laws is quite clear to society and only deviated people will be encouraged. But laws connected with married couples and children are related to people’ s individual lives, and can be directly in conflict with each individual’ s personal religious sentiments. This kind of law will either remain without practical effect due to the influence, of religion and the triumph of the conscience, and inevitably the unhappiness which, this kind of law causes will result in its being officially abolished, or else, after a soul- destroying spiritual struggle, it will weaken the power of religion.

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[1]: Zindah bidar is the translation by Badi u‘z- Zaman Furuzanfar of the book Hayy ibn Yaqzan by Ibn Tufayl. 

[2]: Zanjani, Ibrahim Mahdavi – Payman-e Muqaddas ya mithaq-e izdivaj.

 

 

 

 

Part One: Proposal and Engagement point I begin my discussion about the proposed forty articles from the very point they themselves begin. Those proposals for the Civil Law start in the subject of proposal and engagement. The fact is that the articles relating to proposal and engagement laid down in the Civil Law are not straight Islamic Laws. In other wards, the specific text and command from Islam itself about most of them is not cited. Whatever the Civil Law has cited in support of these Articles is all based upon precepts that are deduced from general Islamic beliefs. So p: 36 we do not consider ourselves obliged to defend the Civil Law, and we shall not enter into a discussion of the individual ideas of the proposer. For the proposer has perpetrated some great mistakes, and is even unable to perceive the correct meaning of some simple articles. However, there are two points here which cannot be waived aside. Does a man’ s proposal of marriage insult a woman? The writer of the proposal says: Our legislator did not loose sight of the reactionary and inhuman attitude in these few simple selections of the law ( relating to proposal and engagement) whereby man as such as the principal figure and woman the secondary. In pursuance of this conception, Article 1034, the opening article of the section on marriage and divorce has been drawn up in the following way‘ : Article 1034. One can propose marriage to any woman who is free of impediments to marriage’. It is evident that although the Article does not contain any order nor assign any obligation, marriage has nevertheless been brought up for consideration as the ‘ taking of a wife’ by man. He is treated as a customer or buyer while the woman is represented as some sort of merchandise. In social laws, expressions like this create a very bad and distasteful psychological effect: the above mini definitions in the laws of marriage especially have an effect upon the relations between men and women, and give man the position of master and owner and woman the status of something owned or of a slave. After such subtle psychological observations, the said proposer p: 37 puts forward the draft of an article to do with asking the hand of a woman in marriage. His aim is that the proposal should not be on the initiative of one side only, so that the phrase “ taking a woman in marriage”, and always consider it the duty of a man to ask the hand of a woman in marriage, we will be lowering the status of women and treating her as a purchasable article.

 

 

It is a man’ s instinct to make the approach and ask, and a woman’ s, instinct to be a source of attraction and act with self- restraint: Incidentally, this very error is one of the most serious ones. It is at the root of the proposal for the annulment of dower ( mahr) and maintenance of the wife ( nafaqah, ) so we shall fully discuss it with the subject of mahr and nafaqah in its proper place. From time immemorial man has approached woman with his proposal and has requested conjugality from her. This has been the greatest of factors in safe- guarding the prestige and honor of women. Nature has created man a means of approach, love and solicitation and woman a source of attraction and being loved. Nature has imbued woman with the disposition of a flower and made man the nightingale, woman the lamp and man the moth. This is one of the wise schemes and plans of creation. Man is instinctively disposed to seek and ask, and woman is instinctively disposed to display herself. The tenderness of her body thus finds its compensation in comparison with the strength of man. It is contrary to the respect and honor of a woman to p: 38 run after a man and woo him, while for a man it is manly that he should approach and solicit a woman for this purpose even if he gets a reply in the negative. In that case he will ask one woman after another until he meets a woman who gives him her consent. While for a woman, who aspires to be the object of affection, the beloved, the adored one, to submit to the heart of a man who will govern her existence, it is repugnant for her to invite a man to be her spouse, and, if it happens that her request is turned down, to go in search of another man. William James, the well- known American philosopher, is of the opinion that the delicate self- control of women is not instinctive but rather that the daughters of Eve, in their long history, have learnt that their honor and prestige do not lie in going after a man and in making themselves commonplace, but in keeping themselves aloof beyond the reach of man; women have learnt this lesson over the long span of history, and they have passed this knowledge on to their daughters. This is not the case with human being only. Other animals also behave like this. It is always the function of the male to present himself impatiently and earnestly before the female. The function entrusted to the female is to display her attractions, to invite attention with due self- control and restraint, and thus capture the heart of the p: 39 rougher sex and accept the male by the tender consent of his heart, and thus render him willingly to carry out her commands. Man seeks union with woman, not to enslave her: It is strange that it should be questioned why the Civil Law uses a language suggestive of the meaning that man is the one who asks the woman. Firstly, the question is mistakenly directed against the Civil Law. It is in fact to do with the law of creation. Secondly, a thing desired does not become your property, nor do you become its owner: students and scholars are desirous of knowledge, a pupil desires a teacher, apprentices of crafts desire skillful craftsman. It is proper that, in the case of the desire of scholars and craftsman, we call those who seek them their owners? Man is desirous of union with woman, not in need of making her his slave. Can one really considerate an insult to the female sex when Hafiz our sweet- tongued poet, composed these lines: Shiraz is the home of ruby lips and the mine of beauty; I am a penniless jeweler, and it makes me anxious. It is a town full of beckoning glances and beauty in all directions; But I have nothing, otherwise I avoid be the buyer of all. Hafiz is sorry that he has nothing to shower over the beauties to attract them to him. Is this derogatory to the position of women, or is it an expression or admiration and recognition of the greatest honor and of their value in hearts that are p: 40 alive and sensitive? The poet in spite of all manliness and virility, pays homage, and gives vent to feelings of admiration before the charms and beauties of women and admits to have fallen in love with them, while they are heedless and take no notice of him. It is the height of her excellence that she can attract man to her wherever he is, and whatever state he is in. Now it can be seen how far the best of her distinctions, her honor and respect is blemished in the name of women’ s rights. This is what we meant when we remarked that ‘ these people, designing to improve her eyebrows have actually deprived the poor woman of her eyesight’ . The custom of asking the hand of woman in marriage is a very safe and wise way of safeguarding the honour and prestige of a woman: As we have mentioned, in the law of creation man is created as a source of solicitation and approach, and is the suitor, while woman is source of what attracts and responds. This is the best guarantee of her prestige and respect and the counteraction to her physical weakness as against the physical strength of man. This is the best security in the maintenance of balance and proportion in their life together. One is the natural advantage that has been given to woman and the other is the natural obligation which man is bound to fulfill. Laws made by man, or, in other words, the legal precautions he employs, should safeguard this advantage for women and this obligation on man. Laws based on the equality of man and woman as far as the duty and civility p: 41 of proposing are concerned act against the woman and respect for her and her honor; equality is outwardly in the interest of man, and works, in fact, against both of them These are the reasons that the draft of the Article put forward by the writer of the forty proposals to make woman share in the duty of proposing does not have any value and is injurious for the whole human race. Errors by the writer of the forty articles in the Civil Law] : The second point that must be mentioned in collection with this chapter is that Mr. Mahdavi, the writer of the forty proposals [ 1] writes: According to Article 1037, if either of the persons engaged in marriage turns down the marriage undertaking without any Sound reason, the gifts that the opposite side, their parents or any third person, have presented in anticipation of the consummation of the marriage, should be returned. In case the original articles no longer exist their value must be returned, unless the gifts, through no fault of the party concerned, have perished. “ According to the provisions of the above- mentioned article, neither does engagement in the view of our legislature carries, like a marriage vow, any legal obligation, nor does it guarantee performance of the marriage, or bind the parties to any sort of commitment. Its only effect is that the party violating the undertaking who, as expressed by the writer of the above law, ‘ without any sound reason’ turns down the marriage settlement, should return the original or the cost of the gifts that they received from the other p: 42 side. Now the fact is that usually at the time of the engagement the two parties do not give each other things for the purposes of the marriage, but undergo considerably heavy outlay for the engagement itself. As you see Mr. Mahdavi’ s objection to this article of the law is that “ engagement” is not considered to carry legal obligation and be a guarantee of performance. The only result of engagement that has been acknowledged is that the party violating the engagement should return the gifts or their value to the party that presented them, whereas the main expenses which the individual must sustain in an engagement are other expenses, for example the expenses of the engagement celebrations, inviting guests and things connected with this. I would add that another objection can also be made against this Article, and that is that the Article mentions that if ‘ without any reasonable cause’ either of the parties breaks up the marriage agreement, the defaulting side should return the original articles it received as gifts from the other side or their cost. Whereas, as a rule, if one party turns down the marriage agreement ‘ on reasonable grounds’ also, they should, on, being asked by the other side, at least return the original articles presented as gifts by the other side. As a matter of fact, none of these objections are relevant. Article No. 1036 of the Civil Law contains the following‘ : If anyone of the engaged persons breaks up the intended marriage ‘ without reasonable grounds’ and in case p: 43 the other side, or the parents or other persons, were deceived into believing that the marriage would take place and incurred expenses, the side which turned down the marriage agreement must defray the expenses incurred by the other side, but such damages are restricted to the expenses that are customary This Article of Law has provided for all those eventualities that Mr. Mahdavi thought the law did not anticipate. It is in this Article that the condition of ‘ without reasonable grounds’ is stipulated. According to this Article, the defaulting party is responsible not only for the expenses of the other party but also for the expenses of the parents and others. This Article, because the stress is on the word “ deceived”, and this is suggestive of the basic intention of the Article, is commonly known as the rule of “ deception” . Besides that, in the Civil Law incitement is acknowledged to be a binding liability of the person who incites an act, and Article No. 332, which concerns incitement, can be implemented to secure the defaulting parties in such cases. So, the Civil Law not only did not overlook the losses sustained in connection with engagement ( which according to the writer of the proposals are realized because of the engagement itself, ) but it has incorporated it in two Articles. Article No 1037 of the Civil Law states— : “ In case of the intended marriage being broken up, the gifts which either side had given or the parents of the persons engaged had presented in anticipation of marriage p: 44 may be demanded back by each side. If the original things do not exist, that side will be entitled to the value of the gifts which can normally be preserved, excepting the gifts that have perished through no fault of the other side” This Article concerns the gifts that both sides present to each other. As you notice, there is no condition in the Article to the effect that either of the parties should without reasonable grounds have broken up the intended marriage. The addition of the condition ‘ without any reasonable grounds’, is an irrelevant presumption of Mr. Mahdavi’ s. It is strange how a person who is incapable or comprehending the meaning of a few simple articles of the Civil Law ( in spite of the fact that for years his occupation had been the study of these Articles, and that, as a specialist in the knowledge of these laws, he had been a burden on the budget of the country, ) can cherish the wish to change the revealed law which involves thousands of considerations and fine points. It has also not been mentioned that up to five years ago, when Mr. Mahdavi was busy with the compilation of the book Payman- e- muqaddas ya Mithaq- e izdivaj ( The Sacrament or the Pact of Marriage, ) he had been reading the above sentence “ without reasonable ground” as “ without any reason or motivation”. In his, book he put in an extensive chapter wherein he wrote‘ , How on earth is it possible for something to take place without any reason or motivation’ ? But eventually it was disclosed to him that for years he had been misreading that Article of the Law and erroneously taking it to mean what it did not and he then admitted that the real reading was “ without reasonable grounds”.

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[1]: Manuchihriyan, Banu Mahr angiz – Intiqad bar gavanin-e asasi va madani-e Iran.

 

 

 

 

 

 

 

Part Two: Fixed- Term Marriage

point 

Unlike many persons, I am never made uncomfortable by doubts and misgivings in the problems of Islam, despite my attachment to and belief in it. Rather, in the depth of my heart I feel glad, because I believe and have experienced during my life that whenever and howsoever any aspect of this pure, divine code of life is assailed, it displays itself with more force, vigor, clarity and splendour. The distinct feature of truth, of course is that doubt and disbelief help to make it all the more vivid. Doubt precedes belief, and indecision is the source of investigation. Zindah bida [ 1] quotes from al- Ghazali’ s treatise Mizanul-‘ amal“….. : The utility of our exhortations is only this much that you may begin to have misgivings about your time- ridden traditional conceptions, for indecision is the basis of investigation and one who does not doubt is not reflecting on things in the right way. One who does not look in the right way does not see things well, and such a man lives in blindness and confusion” . Let them speak, write, hold seminars and protest till, in spite of themselves, they will become a means of making clear the realities of Islamic teachings. One of the brilliant laws of Islam, according to p: 46 the Ja’ fari ( shi’ ite) school, which is the formally established sect in our country, is that marriage may take place in two years: permanently or for a fixed period. Permanent and fixed- term marriages are alike in some of their arrangements and different in certain others. One of the features that distinguish between them is, in the first instance, that in fixed- term marriage a woman and a man take a decision that they will undertake a marriage for a fixed period, and at the end of that period, if they are inclined to extend the period, they may extend it, and if they do not wish to do, they may separate from each other. The other feature is that they have more freedom in the settling of terms and conditions according to how they wish. For example, in a permanent marriage a man is responsible, whether he likes it or not, for daily expenses, clothing, dwelling and the other necessities of life, such as medicine and medical treatment, but in a fixed- term marriage, the couple is joined by the free contract that was agreed upon by them. It is possible that the man may not wish, or cannot afford, to bear these expenses, or that the woman does not wish to use the money of the man. In a permanent marriage the wife, whether she likes it or not, must accept the man as the head of the household and carry out what he says in the interest of the family situation, but in a p: 47 fixed term marriage everything depends upon the terms of the agreement they conclude between themselves. In permanent marriage, the wife and the husband, whether they like it or not will have mutual rights of inheritance with each other, while in a fixed- term marriage this is not so. Thus the real and essential difference between the fixed– term and the permanent marriage is that the former, as far as limits and conditions are concerned, is “ free”, that is, it depends upon choice and the contract between the two parties. The fact of the marriage being temporary gives to both parties a sort of liberty, because ( with regard to the fixation of the duration of the agreement) they can exercise their opinion. In the case of permanent marriage, neither of the two parties ( without the consent of the other party) has a right to exercise restraint in having children or to practice birth- control, but in fixed- term marriage, the consent of the other party is not necessary. In fact, this is another sort of freedom that has been given to the couple. The children born to the couple who have temporarily married are in no way different from the issue of a permanent marriage. Mahr ( dower) is also a pre- requisite in a permanent marriage as well as in a fixed- term marriage, with the difference that in a fixed- term marriage non- specification of the amount of the mahr nullifies the marriage, whereas in a permanent marriage the marriage itself not nullified and an unspecified mahr can be arranged. In permanent p: 48 marriage, the mother and the daughter of the wife, and the father and son of the husband are forbidden ( for marriage) and are mahram[ ; 1] it is similarly the case with the above relations in temporary ( fixed- term) marriage. Besides, just as proposing marriage to a permanently married woman is prohibited, so is it also in the case of a fixed- term married woman; just adultery with a permanently married woman makes her prohibited to the adulterer forever, so also does it in the case of a temporarily married woman; just as a permanent wife has to observe a period of iddah ( during which she may not marry) after divorce, so a temporary wife also has to observe a period of iddah after the termination of the agreed period of the marriage or its dissolution. There is this much difference, that the period of iddah for a permanent married woman after divorce is ( the time of) three periods of menstruation, while for temporarily married woman it is ( the time of) two period of menstruation or forty- five days. In the case of a permanently married wife, a man cannot, while she is alive, marry her sister. In the case of a fixed- marriage, also, two sisters cannot be married to the same person at one time. These are some of the relevant principles of temporary or terminable marriage as mentioned in Shi’ ite jurisprudence, and our Civil Law has observed them to the latter. We, of course, uphold this law which has the above distinctive features. If p: 49 our people have, in the name of this law, misused it and are still misusing it, the law itself is not at fault. If this law were nullified, the objectionable practice would not stop; only the form would he changed. Besides, there would be hundreds of evils that would result from the annulment of this law. We must not launch an attack on the spirit of the law, when we should be reforming and awakening man, simply because of man’ s lack of capability and fitness for reform, and then exonerate man and hold the law responsible. Now, let us examine what necessity there is for a law in the name of fixed- term marriage, when there is already a law of permanent marriage? Is a fixed- term marriage, as the contributors to Zan- e ruz have written, incompatible with the dignity of a woman as a human being, and against the spirit of the Charter of Human Rights? Is not temporary marriage, if it ever was a necessity at all, a necessity of a by- gone era? And is it not true that the contemporary life- style, the conditions and demands of present- day life, argue against it? We shall examine this point under two headings— : a) Contemporary life and fixed- marriage. b) The defects and evils of fixed- term marriage. Contemporary life and fixed- term marriage As we already know, permanent marriage creates great deal of responsibilities and duties for the couple. This is why a boy and a girl in their early youth, when they enter the period in which natural puberty brings them under the p: 50 pressures of the instincts, are not ready for a permanent marriage. The characteristic feature of our modern age is the lengthening of the span of time between natural puberty and social maturity, when one becomes capable of establishing a family. If, in the simple old days, a boy at the beginning of his natural puberty could take up a vocation in which he could still till the end of his life, this is no longer possible. A student who successfully passes through his education in primary school, secondary school and university without any interruption, and gets his school certificate and passes the university entrance examination, will graduate at the age of twenty- five. Surely it will then take three to four years to arrange things to get married permanently. The same applies in the case of an educated girl who has to pass through all the stages of study. Modern youth, the time of puberty, and the onset of textual activity: If you ask a boy student of eighteen years of age who sexual ardor is naturally at its height, to get married permanently, people would laugh at you. The same is the case with a girl student of sixteen. It is not practically possible for this category of people to burden themselves at such an early age with the responsibilities of permanent marriage and commit themselves to a life with the many duties and obligations towards each other and also towards the children which they will have.

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[1]: Zan-e-ruz, no. 86, p. 72. 

[1]: Within the Islamic family, those who are not permitted to marry because of consanguinity, or, as in this case, proximity of relationship are termed mahram to each other (Ed. )

 

 

Monasticism for a fixed period, sexual communism, or fixed- term marriage: I ask you how, in these circumstances, with these natural instincts, should we behave. Is nature prepared p: 51 to delay the advent of puberty till we complete our education, and bring our sexual instinct to stand still, because our modern way of life does not permit us to marry at sixteen or seventeen years of age? Are the young ready to undergo a period of temporary asceticism and put themselves under the strain of rigid austerity till such time as there may arise an occasion for permanent marriage? Suppose a young person is prepared to undergo temporary asceticism, will nature be ready to forego the formation of the dreadful and dangerous psychological penalties which are found in the wake of abstention from instinctive sexual activity and which psychiatrists are now discovering? There remain two alternatives only. We may leave the young to themselves and ignore what they do. We may allow a boy to have unlawful sexual relations with hundreds of girls, and allow a girl to have unlawful relations with tens of boys and have so many abortions. In other words, in practice, we accept sexual communism, and because we have given liberty to the young man and young woman equally we have satisfied the spirit of the Charter of Human Rights. We say this, because, according to so many persons lacking foresight, the spirit of the Charter of Human Rights is that if a woman and a man are to leap into the valley of Gehenna, they should leap together, hand in hand, shoulder to shoulder. Can such young men and women, who have had sexual relations with a p: 52 large and unlimited number during their student life, turn out to be new men of life and women of the family when they become permanently married? The other course is fixed- term free marriage. Fixed- term marriage puts the limit on a woman that she must not be the wife of two men at the same time. Evidently such a restriction upon the woman itself necessitates a restriction upon the man. When every woman has exclusive attachment to a particular man, every man will necessarily be attached to a particular woman, excepting in cases which the number on one side may be more[ . 1] With this arrangement a young man and woman may live through the time of their education without falling back upon temporary asceticism and enduring its penalties, and without falling into the abyss of sexual communism. Experimental marriage The occasion for such marriage is not confined to the period of study. It may arise in other circumstances too. In principle it is possible that a man and a woman who want to marry permanently, but have not had the opportunity to get to know each other well enough, may marry temporarily for a specified period as an experiment, If they are fully confident and satisfied with each other, they may give permanence to this marriage, otherwise they can separate. I ask you why Europeans think it necessary and unavoidable to maintain a number of prostitutes in a specified area in every town under the control and observation of the state. Is there any other reason p: 53 except to make sure that the numbers of bachelors who cannot afford to marry permanently do not become a great danger for families[ ? 1] Russell’ s views on fixed- term marriage: Bertrand Russell, the well- known British philosopher in his book Marriage and Morals writes“ : So long as the virtue of respectable women is regarded as a matter of great importance, the institution of marriage has to be supplemented by another institution which may really be regarded as a part of it — I mean the institution of prostitution. Everybody is familiar with the famous passage in which Lecky speaks of prostitutes as safeguards of the sanctity of the home and of the innocence of our wives and daughters. The sentiment is Victorian, and the manner of expression is old- fashioned, but the fact is undeniable. Moralists have denounced Lecky because his remark made them feel furious and they did not quite know why, but they have not succeeded in showing that what he said was untrue, The moralist asserts, of course quite truly, that if men followed his teaching there would be no prostitution, but he knows quite well that they will not follow it, so that the consideration of what would happen if they did is quite irrelevant( ” p. 97) This is a Western formula for finding a remedy against the danger to men and women who cannot afford to marry permanently, and previously we saw the formula which Islam has put forward. If this Western formula be accepted and put into practice and a group of unlucky women are specifically p: 54 allocated for fulfillment of this “ social duty”, will woman then rise to her real position and be given human respect, and , will the spirit of the Declaration of Human Rights be satisfied? Bertrand Russell has written a full chapter on the subject of experimental marriage in his book Marriage and Morals. He says: “ Judge Ben B. Lindsey, who was for many years in charge of the juvenile court at Denver, and in that position had unrivalled opportunities for ascertaining the facts, proposed a new institution which he calls ‘ companionate marriage’. Unfortunately he has lost his official position, for when it became known that he used it rather to promote the happiness of the young than to give them a consciousness of sin, Ku Klux Klan and the Catholics combined to oust him. Companionate marriage is the proposal of wise conservative. It is an attempt to introduce some stability into the sexual relations of the young, in place of the present promiscuity. He points out the obvious fact that what prevents the young from marrying is lack of money, and that money is required in marriage partly on account of children, but partly also because it is not the thing for the wife to earn her own living. His view is that young people should be able to enter upon a new kind of marriage, distinguished from ordinary marriage by three characteristics. First, there should be for the time being no intention of having children and that accordingly the best available birth- control information p: 55 should be given to the young couple. Second, that so long as there are no children and the wife is not pregnant; divorce should be possible by mutual consent. And third, that in the event of divorce, the wife should not he entitled to alimony. He holds, and I think rightly that if such an institution were established by law, a very great many young people, for example students at university would enter upon comparatively permanent partnerships, involving a common life, and free from the Dionysiac characteristics of their present sex relations. He brings evidence to hear that young students who are married do better work than such as are unmarried. It is indeed obvious that work and sex are more easily combined in a quasi- permanent relation than in the scramble and excitement of parties and alcoholic stimulation. There is no reason under the sun why it should be more expensive for two young people to live together than to live separately, and therefore the economic reasons which at present lead to postponement of marriage would no longer operate. I have not the faintest doubt that Judge Lindsey’ s plan, if embodied in the law, would have a very beneficial influence, and that this influence would be such as all might agree to be a gain from the moral point of view( ” . ibid. pp. 107— 109) That which Judge Lindsey and Russell call ‘ companionate marriage’, though it is a little different from temporary Islamic marriage, clearly shows that thinkers like them have gone p: 56 to the root of the problem and are satisfied on the point that the usual permanent marriage is not by itself sufficient for social requirements. Fixed- Term marriage 2 point The particulars of the law of fixed- term marriage, the necessity of such law, and the insufficiency of permanent marriage in meeting human needs, especially in the present age, have formed the subject matter of our study. Now, want to present, as it were, the other side of the coin. We shall see what damage it may possibly do away with. By way of introduction I shall give a short history of the writer’ s beliefs. Among all the subjects, problems, topics and matters of discourse, that have existed and do exist now for man no subject or field of discourse in anywhere near as complex and garbled as the history of human sciences, beliefs, customs, traditions and manners. And this is the reason, why man has talked more nonsense on these subjects, than on any other, that he has an inordinate desire to express his views. For example, any one who is in touch with Islamic philosophy, gnosis, Sufism and theology, and is acquainted with some modern writings, which are mostly extracts or the origin writings of foreigners will follow what I mean. It is something like this. To express their point of view or, this kind of topic, the orientalists, their admirers and camp followers, consider every thing, necessary except that they themselves should have a thorough grasp and comprehension of the problem. For example, around the p: 57 subject that is known in Islamic gnosis as wahdatu’ l- wujud ( the unity of existence, ) is there any thing that has not been said! Only one thing is missing and that is what exactly wahdatu’ l- wujud is and what conception the giants of gnosis like Muhyi’ ud din ibn al-‘ Arabi and Mulla Sadra had of wahdatu’ l- wujud. As I read a few of the articles with some of the ideas pertaining to fixed- term marriage in certain issues of Zan- e ruz, I could not help remembering wahdatu’ l- wujud. I saw that all sorts of things had been discussed except that thing which is the spirit and the purpose of this law and the intent of the legislator. Of course, since this law is part of the “ heritage of the East’’, it is being received rather coldly. If it were a souvenir of the West, it would have been otherwise. Certainly, if this law were imported from the Western part of the globe, there would have been conferences and seminars on how the restriction of marriage to permanent marriage does not suit the second half of the twentieth century, how the present generation wants to be free and live freely, and will accept anything but free marriage in which they individually choose all the restrictions and limitations. For this reason, now that this call is raised from the west and someone like Bertrand Russell proposes the subject of Companionate marriage, it can be safely predicted that, to a greater extent than Islam, wants, this idea will be welcomed and permanent marriage will p: 58 be forsaken altogether, and we will be compelled in future to defend, and propagate in favor of permanent marriage.

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[1]: i. e. , polygyny. See Part 9 - (Ed. ) 

[1]: The practice of having a state-run brothel was an early twentieth century Western import into Iran. Suck establishments were actively encouraged during the reign of the Pehlavis, and could be found in most large towns in Iran. (Ed. )

 

 

Objections and difficulties The defects and harm that have been mentioned in connection with fixed- term marriage are as follows- : 1. Marriage should rest on a stable foundation. A couple, when they are first joined by the pact of marriage, should consider them attached to each other for ever, and the idea of separation should not enter their minds. So a fixed- term marriage cannot be a stable pact for the couple. That the foundation of marriage should be stable is quite right, but this objection arises when we replace permanent marriage by fixed- term marriage and wish to annul permanent marriage. No doubt, when both parties have the means for permanent marriage, and have full and satisfactory information regarding each other and have full trust in each other, they may very well find themselves in the pact of marriage for ever. Fixed- term marriage has been allowed in the shari’ ah only because permanent marriage by itself, could not cope with human needs in all conditions and , circumstances, and dependence entirely upon permanent marriage would unavoidably create a situation in which people would either be advised temporary asceticism or would be left to be drowned in the depths of sexual communism. It is quite clear that any young man and woman who had found all the desired prerequisites for a permanent marriage would not be greatly enthusiastic about a temporary alliance. 2. The women and girls of Iran, who subscribe to the Shi’ ite p: 59 faith have not welcomed fixed- term marriage and have considered it rather as an insult to them. Thus, the general opinion of the Shi’ ahs has rejected it. Our reply is firstly that the dislike of mut’ ah ( fixed- term marriage) is due to the misuse made of it by sensual persons. The law should apprehend such persons, and we shall discuss shortly this point of misuse. Secondly, the wish that fixed- term marriage should be welcomed like permanent marriage is misplaced and wrong, because the philosophy of fixed- term marriage is based upon the non- availability of means, and the inability of both the parties, and one of them, to become permanently married. 3. Temporary marriage is detrimental to the position and honor of a woman because it is, so to say, the hiring of a human being. It is a religious license for the sake of human nature. It is against the dignity of a woman to give herself to a man in return for the remuneration she gets from him. This is the most amazing objection of all. Firstly, in view of the distinctive features that we have already related in the previous section, what does it have to do with hire and a fee? Is the time limit in this marriage the cause of its being excluded from the definition of marriage and acquiring for itself a form in which ‘ fee’ and ‘ hire’ are appropriate terms? And is it only because it is explicitly ordained that the mahr ( dower) must be ‘ fixed’ and ‘ definite’, that this p: 60 mehr is being depicted as the rental charge? We ask whether, if there were no dower and the man did not place anything before the woman, the would then regain her human dignity? We shall discuss separately the subject of mahr ( dower). Incidentally, Islamic jurists have made clear, and the Civil Law has the same basis, been so arranged and brought together into sections, that temporary and permanent marriages, from the point of view of the substance of their stipulations, have absolutely no difference between them, and should not have. Each one of them is a marriage, and each one takes place with the recital of a specific formula. If the fixed- term marriage is set up with the recital of those terms that are specially intended for remuneration or fee, the marriage is void. So we ask, how long and from which date has the renting of man been abolished? All tailors, barbers, doctors, artesian, all civil servants, from the Prime Minister to the lowest worker in a factory, are hired men. The woman who has entered into the alliance of a fixed- term Marriage with, a particular man, out of her free will and of her own choice, is not a rented person and she has not acted against the honor and status of a human being. If you want to see a rented woman and wish to witness the slavery of woman, you should travel to Europe and America and call in on the film companies so that you may understand what p: 61 a rented woman is. See how these companies put up the actions of women for sale, their poses, manners and sexual charms. The tickets that you purchase for cinemas and theatres are, as a matter of fact, a payment towards the rental value of the rented woman. You may see there to what the unfortunate woman presents her body for the sake of money. For a long time under the directions of ‘ honorable’ experienced specialists, she has learnt the secrets of sex- appeal. She puts her body, soul and personality at the mercy of a financial organization to get more sales for that organization. Visit the cabarets and hotels and see what honors woman has attained. For a paltry sum as her wage she puts all her honor and prestige in the hands of the guests, so that she can contribute to filling the already full pockets of certain rich men. Women on hire are those models who are wage- earners and hired workers for the big sales- stores and who give up their honor and prestige to satisfy their employers’ avarice and greed. Women on hire are those women who appear on the television screen with all sorts of beautification, most of which are un- natural, to attract buyers for some commercial firm to popularize some commercial commodity. But her basic aim is her wage. Who does not realize that in western countries today the gracefulness of a woman, her sex- appeal, her voice, the art and originality of a woman, the soul and body of a woman p: 62 and in the end, the whole personality of a woman is at the beck and call of American and European capitalists. It is so sad that you, knowingly, or unknowingly, drag the gentle and honorable women of Iran to such a servile position. I am unable to understand why if a woman marries a particular man on liberal terms temporarily, she is to be considered a rented woman, but if a woman at some wedding party or at a cabaret, before the greedy gaze of thousands of men, ruins her larynx for the satisfaction of their sexual inclinations, and turns a thousand and one manners of somersault so that she may get the promised money, is not to he counted a hired woman. Has Islam, which has restrained men from exploiting women like this, and has forbidden woman, from such servility and submission and earning her livelihood in this way degraded women, or has the Europe of the later half of the twentieth century? If, some day, woman fully understands this and is enlightened and notices the traps that twentieth century man has set in her path and concealed from her, she will rise in revolt against this fraud. That will be the time when she finds out that her only protector in all sincerity is the Qur’ an. Of course, that day is not far off. The magazine Zan- e ruz, in its issue No. 87 on page 8, has published a report of a woman named Mardiyyah and a man named Rida under the p: 63 heading “ A Hired Woman”, and has given an account of the misfortune of the unfortunate woman. The story, according to the statements of Rida, begins with the approach of the woman with the proposal of marriage. It means that the formula of the forty proposals was acted upon for the first time and a woman went forthwith a request for marriage. It is quite evident that a story which starts with the proposal of a woman for marriage could not end any better than it did. On the other hand, according to the statements of Mardiyyah, the man, sensual and cruel as he was, portending that he would take her as his permanently married wife and would take care of her and her children, deceived her. Furthermore, without the consent and approval of the woman, with the excuse of having entered into a fixed- term marriage with, her, after gratifying his passion he abandoned her. If these statements are true, the marriage was void. The man was cruel and the woman was ignorant of the religious and statute law. They violated the law and should be punished. Before people like Rida are punished, they should be instructed and Mardiyyah should be warned. How can the laws, as it is, he assailed for an offence the root cause of which is the cruelty of men and the ignorance and forgetfulness of women. The Zan- e ruz magazine supports the cause of Rida, and thus lashes out with its sword against the law. If there were no law p: 64 of fixed- term marriage, would the cruel man, Rida, and the neglectful and ignorant woman, Mardiyyah have lived peacefully and comfortability? Why do you shirk the responsibility of instructing and warning men and women, and why do you keep the rights and duties of man and woman secret from them? Why should you take advantage of a poor woman’ s ignorance and misrepresent the law which is her only protector and guardian as her enemy, and wish that she should destroy her only refuge with her own hands. 4. Fixed- term marriage is some sort of license for polygamy, and polygamy is prohibited by law. So temporary marriage it also prohibited by law. As regards the question of the category of persons for whom fixed- term marriage is allowed by the shari’ ah, and the question of polygyny, we shall discuss these fully at a later stage. 5. Fixed- term, marriage, because it has no permanence, is an unsuitable arrangement for children born of this alliance. The inevitable result of a fixed- term marriage is that the children born will be without a guardian and will remain deprived of kind paternal and loving maternal protection and will remain deprived of a home. This is the objection on which Zan- e ruz magazine lays much stress, but after the explanation that we have made, we do not think there can be any occasion left for argument or dispute. In the preceding section we mentioned that one of the differences between fixed- term marriages and permanent marriages is to do with having children. In p: 65 permanent marriage neither one of the couple is permitted, without the consent of the other, to avoid the responsibility of the birth of child, whereas in fixed- term marriage both sides are free. In fixed- term marriage the woman cannot refuse sexual intercourse with the man, but she has the option that, with out causing interruption during coition, which is harmful for the man, she may avoid pregnancy. The problems of contraception have already been fully solved. If, on the other hand, in temporary marriage couple wishes to have a child, and accept the responsibility of bringing up and looking after the child, they may have children. As far natural affection is concerned there is no difference between the children of a permanently married wife and a temporarily marriage wife. Suppose the father or the mother refuses to perform his or her duties, the law will then declare it their obligation and will oblige them; just as in the case of divorce, the law should take action and should safeguard the rights of the children. If they do not wish to have children, and their only aim is to satisfy their sexual instincts they should take steps to refrain from having children. As far as we know, the church forbids birth control, but according to Islam, if the husband and wife prevent the birth of a child at its point of conception it is permissible. When the pregnancy ha already begun, Islam in no case allows abortion. When the Shi’ ite jurists say p: 66 that the aim of permanent marriage is to have children, and the aim of temporary marriage is gratification and satisfaction of the sexual instincts, they mean the same thing.

 

 

Criticism: The writer of the forty proposals has, in issue No. 87 of Zan- e ruz contributed an article criticizing fixed- term marriage. He firstly says that “ the subject of temporary marriage is so distasteful that even the writers of the law of marriage ( in the civil code) could not manage to comment and give details of this law, as if they loathed their own, work, and only as an outward compliance, according to Articles 1075, 1076 and 1077, stuck some words and phrases together and then passed on. “ The composers of the law relating to temporary marriage ( mut’ ah) disliked their business so much, that they did not even define the above mentioned marriage formally and did not explain its terms and conditions” …. Afterwards the learned writer himself makes amends for this defect in the Civil Law and says“ : The above mentioned marriage means that an unmarried woman, in proportion to a certain settled fee and remuneration, for a limited and specified period, a few hours or a few minutes, gives herself into the hand of a man for the satisfaction, of his passions, and for the gratification if his lust and the performance of sexual acts” . He further says“ , For the proposal and acceptance of the said marriage, special words are quoted from the Shi’ ite books of jurisprudence in Arabic, to which the Civil Law does not refer p: 67 and does not care to mention, as if in the eyes of the legislator it can be realized by the use of any words, Arabic or not‘ , which need only signify the said purpose ( that is the sense of acceptance of remuneration and a fee” ). According to the learned writer: a) The Civil Law does not define and does not explain its terms. b) The essence of temporary marriage is that a woman in return for a fixed remuneration gives herself to a man c) In view of the Civil Law, any word that signifies the sense of the woman being rented is sufficient to connote proposal and acceptance of temporary marriage. I invite the learned writer to study the Civil Law once again, and to study it carefully, and I likewise request the readers of Zan- e ruz somehow to get a copy of the Civil Law and carefully study the following parts. In the Civil Law, the sixth chapter of the volume on marriage is given over to fixed- term Marriage, and it consists of not more than three simple sentences. The first is that temporary marriage is of fixed duration, as it is to be concluded for a specified period. The second is that the period of temporary marriage should be specifically agreed upon. Thirdly, that the law in respect of mahr and succession is the same as mentioned in the chapters pertaining to dower and succession. The respected writer of the forty proposals is under the impression that whatever is mentioned in the five p: 68 chapters of the volume on marriage is all in respect of permanent marriage, and that only these three sections deal with fixed- term marriage. He is unaware of the fact that all the sections of the five chapters, excepting where it is otherwise specified, as in section 1069 or the section about divorce, are all common to permanent and temporary marriage. For example, section 1062, which mentions that “ marriage takes place with an offer and acceptance in words which unequivocally denote the intention of marriage”, is not only meant for permanent marriage. It applies to both kinds of marriage the conditions that the Civil Law lays down concerning the person who concludes the marriage, or the conclusion of the marriage, or the husband and wife, all apply to both kinds of marriage. The Civil Law did not define temporary marriage because there is no need to define it, just as it does not define permanent marriage and considers it too well- known to require a definition. The Civil Law has considered every word that clearly denotes marriage or the taking place of marriage sufficient for the conclusion of marriage, whether it is a permanent or a fixed- term marriage. If, on the other hand, any word conveys a meaning inconsistent with the meaning of marriage, such as remuneration‘ ’, gratification’, ‘ lease’ and rent’, it is not effective for the proper conclusion of a marriage, either permanent or temporary. On the strength of what has been written, I pledge my word that if a number of p: 69 learned judges and those who fully understand the law, who are most numerous in the Ministry of justice, decide that the objection against the Civil Law that has been discussed above is justified, I shall refrain from criticism of any of the articles in Zan- e ruz. Fixed- Term marriage and the problem of the harem point One of the subjects through which occidentals very often attack the Oriental and ridicule him, having made and still making films and writing plays on the topic, is the matter of harems, of which the east has had the misfortune to provide more examples. The life of some of the caliphs and sultans of the eastern countries is reckoned to be the peak of indulgence in this matter, and the keeping of a harem is presented as the fullest and the most complete manifestation of the sensuality and voluptuousness of the man of the east. It is said that accepting the permissibility of fixed- term marriage is tantamount to conceding the maintenance of a harem, which is a weakness and a source of shame for the east before the west. It is as good as licensing sensuality, and licentiousness, which can take any form and assume any shape, is against morality, and is the means and cause of downfall and ruin. Now, in fact, the same thing has been said in respect of polygyny. The permissibility of polygyny is seen as permission to maintain a harem. We shall discuss the question of polygyny separately. At present, we shall particularly confine ourselves to the question of fixed term marriage. This problem p: 70 must be studied and tackled from two points of view. First, to see which factor it was that, from the aspect of its social nature, brought about the formation of harems, and whether the law of fixed- term marriage led to the formation harem in the east. Second, whether the object of making fixed- term marriage religiously permissible was, in a way, to legalize licentiousness and the keeping of a harem for a certain social class. Social causes for harems: Firstly, the creation of harems was due to two factors, operating together. The first and principle factor that brought about the creation of the harem was the virtue and chastity of woman. That is to say that the condition of morality and the social environment were such that women did not have license to have sexual intimacy with any other man when she already had such relations with a particular man. In these conditions, a wealthy, sensuous and lustful man saw no other antidote than to collect a group of women around him and establish a harem. Obviously, if moral and social condition had not counted chastity and purity as necessary for women, and if women could have gratuitously and easily given themselves to any man, and every man could have indulged his desires with any woman at any time, if the means of sexual gratification had been available every where, at every time, under every kind of condition, this kind of man would not have given himself the trouble to establish a large harem at great expense. The other factor p: 71 was the absence of social justice. When there is altogether no social justice and one person drowns in a sea of riches, while another is stuck in a boat, a boat of poverty, want and misfortune, while a vast number of men are denied the possibility or establishing a family and having a marriage partner, in such social conditions the number of unmarried women exceeds the number of men and this paves the way for the establishment of harems. If there is social justice and there are means for everybody to establish a family and choose a marriage partner, naturally every woman will be found associated with a particular man and the circumstances favorable to promiscuous and lascivious behavior and the keeping of a harem will not obtain. Anyway, it is inconceivable that the number of women could be so much in excess that when all men of age are settled in marriage there may even then remain a chance to keep a harem for every man who had the ways and means. It is the habit of historians to relate the intrigues of the harems and courts of the caliphs and sultans and to narrate with lurid details their luxurious and pleasure- seeking activities, but they remain silent when it comes to referring to the deprivations, and never explain and describe the humiliations, failures and mortifications of those who were buried alive under the walls of the forts of the caliphs and sultans. Social conditions did not allow them to choose someone in p: 72 marriage, while tens and hundreds of women out of those detained in harems remained deprived of some of their basic instinctive needs and lived as virgins till the ends of their lives. Certainly, if society were under the rule of an infallibly just and unerringly virtuous ruler, chastity would have been deemed an essential requisite for a woman and sexual satisfaction, would have been impossible except within the frame- work of a marriage ( permanent or temporary; ) economic and social inequality, too, would have been done away with, and for all persons of age the possibility of satisfying the most natural and instinctive human right of having partner would have been attained, and the setting up of harems would have been an impossibility and an absurdity. Even a merely cursory look at history is enough to show us that in the formation and establishment of harems fixed- term marriage has not been in the least instrumental. Of the Abbasid caliphs or the Ottoman sultans, the most notorious figures of all times, none subscribed to Shi’ ism[ . 1] None of them can be said to have taken advantage of it. The Shi’ ite kings, despite the fact that they could have used it as an excuse, never reached the degree of the ‘ Abbasid caliphs and Ottoman sultans. This alone, shows that there were other special social problems which were at the root of this matter.

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[1]: See the heading “Prohibition by the Caliph of fixed-term marriage. ”

 

 

Is the provision of fixed- term marriage a license for promiscuity? In everything, there is some cause for doubt, but it is beyond all reasonable doubt that revealed religions take a stand against promiscuity and p: 73 licentiousness. It is for this reason that, for the followers of most religions, the effacing of desires that lead to promiscuity and licentiousness is taken to be the purpose of practicing strict self- discipline. One of the clear and admitted principles of Islam is to struggle against promiscuity. The noble Qur’ an has placed promiscuity on a level with idolatry. In Islam a man who has an inordinate desire for women, that is, a man who aspires to have all sorts of women, to experience them, is declared to be a man cursed and condemned by Allah. When we discuss the subject of divorce, we shall quote the text of the Islamic commandments on this matter. The distinction of Islamic commandments as compared with the laws of many other religions is that Islam does not permit asceticism and the mortification of natural and instinctive physical needs, but neither does it allow promiscuity According to Islam, all instincts, sexual or other, should be satisfied within the limits of necessity and experience. Islam however, never allows a person allows to raise the heat of his instinctive passions into a state of insatiable thirst. So if anything takes to itself a tinge of promiscuity, cruelty or injustice, it is enough to condemn it as against the spirit of Islam. It is, however, irrefutable that the motive of the Law- giver was never to make fixed- term marriage source promiscuity, a reason for the establishment of the harem by lascivious persons, and a means of misfortune and homelessness for women and p: 74 scores of children. The forceful encouragement and exhortation of the leaders of Islam to fixed- term marriage has a special philosophy which we shall explain shortly. Harems in the present world: Now let us see what the world of today has done about the setting up of harams. The world of today has abolished the custom of harems. The world of today considers the maintenance of harems disagreeable and has eliminated the factor which brought them into existence. Now the question is which factor? Is it social inequality that has been eliminated, and as a result all young persons have the chance to marry, and thus the main, cause of the existence establishment of harems has been abolished? No, it has done something else. It has campaigned against the foremost factor, the chastity and virtue of women, and has thus done the greatest service to the male sex. The virtue and chastity of a woman in so far as it enhances her worth and makes her dear and precious, is considered an obstacle for man. Today’ s world has done one thing which has relieved the sensuous man of this age from the necessity of maintaining a harem with all the expenses and that involves. For a man of today, through the blessings of western civilization, there is a harem everywhere. A man of today does not consider it necessary to have financial resources like Harun ar- Rashid and Fadl ibn Yahya al- Barmaki, so that he may enjoy any variety of women in all the various ways and styles. To keep a motor- car p: 75 and to have an income of two to three thousand tumans is sufficient for a modern man to facilitate his sensual pleasure to an extent that even Harun ar- Rashid did not dream of. Hotels, restaurants and cafeterias are advertised as being equipped already with all facilities in place of a harem for the modern man. A young man like Adil Kutuwali gives in this century detailed, vivid descriptions, and claims to have kept twenty- two lovers with different characteristics, and of different appearances at one time. What is better than that for a modern man? Modern man, through the blessings of Western civilization, does not miss anything of the harem except its enormous expense, trouble and inconvenience. If the hero of ‘ A Thousand and One Nights’ were to raise his head from underneath the ground and see the possibilities of all sorts of amusement and frivolities, and the cheapness of women today, he would never dream of having to establish a harem with all its expenses and disadvantages. He would thank the west for having saved him all the trouble of maintaining a harem. He would forthwith proclaim that polygyny and fixed- term marriage were all hereby annulled, because these laws create responsibilities and liabilities for men as much as they do for women. In this battle of the sexes, both in the past and in the present, we know which sex is the winner. Unfortunately we must say that the looser, both in the past and in the present, is that trusting and open- hearted p: 76 creature we call the female. Prohibition by the Caliph of fixed- term marriage: Fixed- term marriage is one of the distinctive features of Shi’ ite jurisprudence. No other school of Islamic jurisprudence allows it. I never like to enter into the controversies between the Shi’ ahs and the Sunnis, so I shall only briefly refer to a part of the history of this problem. All Muslims unanimously believe, and have consensus of opinion, upon the fact that in the first period of Islam, fixed- term marriage was permissible, and the Holy prophet during one of his journeys, when the Muslims were away from their wives and passing their time in much discomfort, gave them permission for fixed- term marriage. It is like wise agreed amongst the Muslims that the second Caliph, during the period of his caliphate, prohibited fixed- term marriage. The second Caliph, in his well- known and oft- repeated words said“ , There were two things that were permissible in the days of the Prophet which I do hereby prohibit today, and I shall punish anyone who practices them: the mut’ ah of women and mut’ ah of hajj” . A section of Sunni Muslims believe that the Prophet himself, at a later stage of his life, prohibited fixed- term marriage and the Caliph’ s prohibition was actually the commandment of the prohibition of the Prophet carried out by the Caliph in his stead. But as we know, in fact, the actual words of the Caliph are against this interpretation. The correct interpretation of it is what the great scholar ‘ Allamah Kashif al- Ghita[ ’ 1] took it to mean. He said that the Caliph assumed the p: 77 authority of annulling mut’ ah under the impression that the matter of mut’ ah was also included in the subjects who were within the realm of his authoritative control as the ruler and guardian of the affairs of the Muslims. Every ruler and delegate of power may, under his own authority, and deeming appropriate according to the exigencies of the times and circumstances, make such changes. In other words the prohibition of the Caliph was a political or an administrative prohibition, and not a religious or a legal prohibition. According to what history tells us, the Caliph made no secret during his reign of his campaign against the companions becoming dispersed and settling in newly conquered parts of the Muslim State and intermixing with communities who were newly converted to Islam. He was against their scattering beyond Medina as long as he lived. He was of the opinion that they should not enter into blood relationships with the newly converted Muslims before these had a deep Islamic education. He thought untimely intermingling with them would be dangerous for the coming generation. It is evident that it was not more than a temporary reason. The fact that the Muslims accepted this prohibition of the Caliph without a protest also shows that they considered the ordinance of the Caliph to be based upon political and temporal reasons, for, otherwise, it would not be possible for a ruling Caliph to say that the Prophet had prescribed one rule and that he prescribed another rule, and for p: 78 them to accept it without a murmur. However, long afterwards, due to certain incidents and circumstances, the sirah ( way of life) of the previous Caliphs, especial the first two, was accepted as a permanent model programme of life. This fanatical bias was extended to such lengths that it acquired the authority of the original law of Islam. So, the charge against our Sunni brothers is more justified than it is against the Caliph himself. Because the Caliph issued a temporary prohibition ordinance based on political exigencies ( as with the prohibition of tobacco within our own times[ ) 1] in respect of fixed term marriage, others should not have assigned to it a permanent character. Obviously when ‘ Allamah Kashif al- Ghita presented the above view, the did not deal with the question as to how far this interference of the Caliph was justified, and also as to whether the law of fixed- term marriage is or is not within the category of such things in which the ruling authority has a right to interfere and proclaim prohibitory orders, however temporarily. He simply traced the historical stages as to how and in what name and in what manner the prohibition began and saw whether it was because of that reason alone that the Muslims as a whole did not react and did not protest against the prohibitory order. However, the influence and personality of the Caliph, the bias of the people in following his way of life, and his policy of administration, were the cause of relegating this law p: 79 to the shadows of neglect and oblivion. This Sunnah of the Prophet, that is, fixed- term marriage, which is complimentary to permanent marriage and does away with hardships, has been forsaken for ever. This was the situation when the holy Imams, who are the guardians of the faith, greatly encouraged and persuaded people to remember it so that this Islamic Sunnah might not be forgotten and abandoned. Imam Jafar as Sadiq ( a. s) . said“ , One of the matters about which I shall never keep precautionary silence ( taqiyyah) is the matter of mu’ tah” . Thus it was that a secondary cause, in addition to the first cause of temporary marriage being permissible, was added. This was an effort to revive the Sunnah of the Prophet. In my opinion when the holy Imams forbade already married persons to enter in to a fixed- term marriage, it was on account of the first cause of this law. They wanted to say that the law was not in the interest of people who did not need it. Just as Imam Musa al- Kazim ( a. s) . said to ‘ Ali ibn Yaqtin“ , What have you to do with fixed- term marriage, when Allah has made you able to do without it” and to another person he said,” This thing is permissible for a man whom Allah has not made independent of it, but any person who is already married can have recourse to it only when he cannot reach his wife”. Where the holy Imams encouraged and persuaded people generally, it was due to the relative p: 80 secondary cause; namely so as to revive the Sunnah of the Holy Prophet which had been wrongly forsaken. In such it was necessary to make the people as a whole to know and understand the real position of the shariah. Encouragement of only those who were actually in need of it was not sufficient. This can be clearly deduced from the Shi’ ite traditions and narrative sources. It is, anyhow, clear that the intent and purpose of the first law- giver, in the explanation and commentary of this law, and the purpose and aim of the holy Imams in encouraging and persuading people to act according to it, was never meant to make it a source of promiscuity and licentiousness and a reason for keeping a harem by cruel persons, or a source of helplessness for a number of forsaken women and of creating children without guardians.

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[1]: Shaykh Muhammad Husayn ibn Shaykh ‘Ali al-Kashif al-Ghita’, (1294/1877 – 1373/ 1954) , one of the most renowned scholars of the religious scholars of an-Najaf al-Ashraf (Iraq). 

[1]: The granting of an exclusive tobacco monopoly to a private British company by Nasiru’d -Din Shah in 1890 in exchange for handsome bribes but no payment resulted in a successful protest movement (1891 — 1892). Instrumental in this was the fatwa issued by the then, leading Shi’ite mujtahid Mirza Muhammad Hasan Shirazi prohibiting the smoking of tobacco. This protest movement was a fore- runner of the later Iranian Constitutional Revolution (1905-1911).

 

 

A tradition from ‘ Ali ibn Abi Talib: Mr. Mahdavi, the writer of the forty proposals, writes in issue No. 87 of Zan- e ruz: “ In the book al- Ahwal ash- shakhsiyyah ( Personal statutes) compiled by Shaykh Muhammad Abu Zahrah [ 1] it is quoted from Amir al- muminin that: بالحِجارة رجمته إلا مُحصِن وُهو تَمتَع أحداً أعلم لا ( “ Mr. Mahdavi has translated it thus‘ ): whenever I come to know that a person ‘ not worthy of it’ has concluded a mut’ ah marriage, I shall penalize him for adultery, and sentence him to be put to death by stoning” . “ Firstly, if we seriously intend to follow the sayings of Amir al- muminin faithfully, why should we avoid all those, narrations which are recorded in Shi’ ite and p: 81 non- shi’ ite sources in respect of mut’ ah, and cling to this one narrative quoted by a Sunni writer who did not even mention his source? One of the valuable sayings of Ali ( a. s) . is the following“ : If ‘ Umar ( ibn al- Khattab) had not proceeded in taking such an initiative, and had not prohibited mu’ tah, no- one, excepting those who were of a perverted nature, would have committed adultery’ . In other words, if the temporary marriages had not been prohibited, nobody would have been compelled to commit adultery for the satisfaction of his instinctual drives. Only those who always relish and prefer an unlawful act to a lawful one would have committed such an act. Secondly, the meaning of the above expression is “ whenever I come to know that a man who is permanently married has concluded a mut’ ah marriage I shall sentence him to be death” . I do not know why Mr. Mahdavi has translated the word muhsin which, means a permanently married man as “ not worthy of it”. Moreover, the purport of the narration is that permanently married men have no right to marry temporarily. If the intention had been that nobody had the right, the condition “ who is permanently married” would have been redundant. So, this narration, if at all reliable, supports the view which can be expressed thus: “ Legal permission for mut’ ah has been provided by the shari’ ah for those who are in need of a wife, that is, bachelors or those whose wives are not with them” . So, the narration supports its being permissible, and p: 82 not its prohibition.

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[1]: A contemporary Egyptian religious scholar.

 

 

 

 

 

 

Part Three: Woman and Her Social Independence Freedom in determining one’ s future A young girl came before the holy Prophet perplexed and anxious and exclaimed: “ O Messenger of Allah... From the hand of this father” ... “ But what has your father done to you”, the Prophet asked. “ He has a nephew”, she replied“ , and he has given me in marriage to him before consulting me in the matter”. “ Now that he has done it,” said the Prophet“ , you should not oppose it. Agree to it, and be your cousin’ s wife” . “ O Messenger of Allah! I do not like my cousin. How can I be the wife of a man whom I do not like” . “ If you do not like him, that is an end to the matter. You have full authority. Go and make the choice of man whom you would like to marry” . “ By chance”, the girl finally admitted“ , I very much like my cousin and do not like any other person but because my father did this thing without asking my consent, I have purposely come to put questions on this matter and to get your replies and hear this decision from you, and so inform all women that henceforth fathers have no right to take a decision on their own and give their daughter in marriage to anyone they like” . The great fuqaha( ’ Islamic law- scholars, ) like Shahid ath- thani [ 1] in Masalik, and the writer of Jawahiru‘ l- Kalam[ , 2] have narrated this hadith, through non- Shi’ ah chains of transmission. In pre- Islamic days the Arabs, as well as non- Arabs, considered fathers to have full authority over p: 83 their daughters, their sisters and in certain cases even over their mothers, and, in the choice of husbands for them, they did not believe that these women should make their own decisions and having a choice in the matter. It was the sole authority and function of the father or brother, or, if there was no father or brother, of their uncle, to give them in marriage to whomever they liked. This right was practiced to such an extent that fathers assumed for themselves this right in respect of a girl still unborn, and, when she had been born and brought up, the man to whom she had been married had the right to take the girl away for himself. Marrying a woman before she is born One day, during the last pilgrimage which the Prophet performed, when he was on a horseback with a whip in his hand, a man come across him and said he had a complaint to make. The Prophet asked what the complaint was. “ Many years ago”, he said “ during the jahiliyyah ( the pre- Islamic period, ) I and Tariq ibn Marqa’ had taken part in a battle. During the skirmish, Tariq was badly in need of a spear and he cried‘ : Is there any person who can spare me his spear and accept remuneration for it’ ? I stepped forward and asked what remuneration he would give. He said‘ , I give my word that the first daughter born to me, shall be brought up for you’ . I accepted the offer and handed over my spear to him. p: 84 The matter was thus closed and many years elapsed. At last I recollected the pledge and discovered that a daughter had been born to Tariq and that she was of age and that he had her in his house. I went to him, reminded him if the events, and demanded the settlement of the debt. But Tariq went back on his pledge and broke his word of honor and wanted to start asking for mahr( , dower). Now I have come to you to know whether right is with me or with him. “ What is the edge of the girl” ? The Prophet inquired. “ She is grown up, and white hairs have appeared in her head” . “ According to what you ask me, neither you nor Tariq is in the right. Go back and look after your own affairs and leave the poor girl to look after her” . The man was astonished to hear this. For a moment he was absorbed in wondering what sort of a judgment it was. Was the father not in full authority regarding his daughter? If he should pay the dower to the father of the girl, and if he were willingly voluntarily to hand over the girl to him, was that also wrong? The Prophet seeing him astonished and perplexed, understood his state of mind and said: “ You should be sure that in the way that I have pointed out neither you nor your friend Tariq will he sinners” Exchange of daughters ‘ Shighar’ marriage was another manifestation of the absolute authority of fathers in respect p: 85 of their daughters. Shighar marriage meant the exchange of daughters. If two persons had two unmarried grownup daughters, they used to exchange them so that the dower of one daughter would account for the dower of the other girl. Thus the daughter of one man was to go over to the father of the other daughter and vice versa. Islam annulled this custom also. The Holy Prophet gave az- Zahra, his daughter full freedom in choosing a husband: The Holy Prophet himself gave away several daughters in marriage. He never deprived them of their right to choose their husbands, on the occasion when ‘ Ali ibn Abi Talib ( a. s) . presented himself to the Holy Prophet to ask for the hand of Zahra ( a. s, ) . the Holy Prophet said‘ , Several persons have come to me to ask the hand of az- Zahra ( a. s) . but by the displeasure of her countenance she has refused them. Now I shall inform her of your request” . The Holy Prophet went to his daughter and put the matter before her, az- Zahra did not turn her face away in disapproval this time, and, by keeping silent and undisturbed, expressed her consent. The Holy Prophet came away from az- Zahra reciting the takbir ( Allahu Akbar, Allah is Great). The Islamic movement in favour of women was entirely independence: Islam did the greatest service to the female sex, and not only by depriving fathers of their absolute authority. It gave complete freedom; it gave individuality, an independence of thought and opinion, and formally acknowledged their natural rights. However, the steps that Islam took in connection with the rights of women are, without doubt, basically different in two ways from what p: 86 is going on in the west and among those who imitate the west. Firstly, in the area of the psychologies of man and woman, Islam has accomplished a miracle. We shall discuss this matter in future articles, and shall give clear examples. The second difference is that despite the fact that Islam acquainted woman with her human rights, gave her individuality, freedom and independence, it never induced her to revolt and mutiny against, or be cynical towards the male sex. The Islamic women’ s movement was a “ white’’ movement untinged with black, red, blue or purple[ . 1] Daughters’ respect for their fathers and wives’ respect for their husbands was not done away with. The foundations of family life were not wrecked. It did not make women despise having husbands, being mothers and bringing up children. Islam did not provide the means for social gatherings where bachelors and women- chasers go to hunt out their victims free of cost. Islam did not allow wives to leave the sides of their husbands, and daughters the benevolent protection of their father, and mothers, to be handed over to men of title and wealthy persons. It did nothing to cause one of weeping and wailing to rise to the heavens crying ‘ Oh woe, the sacred law of the family has been shattered, reliance on the father has disappeared; in the midst of all this generation, what can we do’ ? What can we do when there is so much infanticide and abortion? When there are forty illegitimate births in every p: 87 hundred? Illegitimate children with unknown fathers, whose mothers, since they did not give birth to them in the loving home of a father, have no strong feelings towards them, and them over to a social organization and then never inquire further about them. In our country we are in need of a women’ s movement, but we need a pure Islamic movement and not a dark and gloomy European Movement. We are in need of a woman’ s movement in which young, lustful men are prevented from taking part; a movement which should truly spring from the great teachings of Islam, and not something in which, in the name of amending the Civil Law, the certain laws of Islam are made the victim of fancies and capricious desires; a movement which should be based upon a deep, rational investigation, so that it may make clear for all societies who take upon themselves the name of Islam to what extent they are putting into practice the teachings of Islam. If, with the help of Allah, we succeed in continuing this series of articles, when we have come to an end of all the topics necessary to the discussion itself, we shall start writing on the subject of an Islamic women’ s movement, then see that they can establish a movement which will be new, acceptable to the whole world and reasonable, and which will have for its fountain- head its own independent philosophy of fourteen centuries, without having In extent a begging hand, towards the western world.

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[1]: Zaynu‘d-Din ibn Ali ibn Ahmad al Amili, famous as ash-Shahid ath-Thani (the Second Martyr) (911 /l505 — 966/1559). He was killed by emissaries of the Ottoman Sultan of the time who had been sent to summon him to the ottoman court in Istanbul. His Masalik is a commentary on ash Sharayi’u’l-Islam’, compendium of rulings in jurisprudence by the 7th /13th century jurisconsult Jafar ibn al Hasan ibn Yahya al-Hilli, better known as Abu‘l Qasim al-Mohaqqiq al-Hilli. 

[2]: Muhammad Hasan an-Najafi (1192/1778 — 1266/1850) one of the greatest jurisconsults of the last two centuries, Jawahiru’l Kalam is a vast commentary (6 large quarto vols) on the same Sharayi’ by al-Mohaqqiq al-Hilli as is Masalik 

[1]: In other words the movement was a pure movement based on the fundamental nature of woman, and not allied to some particular man-made ideology

 

 

Permission of fathers: The p: 88 question under consideration on the authority of fathers over daughters is whether the permission of the father is needed in the marriage of girl who marries for the first time. According to Islam there are certain things that are certain. Both the son and the daughter, as far as economics is concerned, are independent. The property of a son and a daughter should be put at their disposal if they have reached puberty, are in full possession of mind, and are in addition, mature, that is, when from a social point of view, they have that degree of mental maturity which allows them to personally safeguard their property. The father, mother, husband, brother or anybody else has no right to supervise or interfere. There is another matter which is considered completely certain in connection with marriage. Sons, when they have reached puberty and are fully in possession of mind and mature, are free to make their own choice, and no- one has a right to interfere. But in case of daughters there is a slight difference. If a daughter was once married and is at present a widow nobody has a right to interfere in her affairs, and she is like a son. But if she is virgin and is going to enter into a marriage contract with a man for the first time, what is the situation? In so far as the father does not have absolute authority over her and cannot give her in marriage to anybody he likes without the daughter’ s p: 89 desire and consent, there is no dispute. We saw that the Prophet in reply to the girl, whose father had married her without her knowledge and without her consent, clearly ordained that, in case she did not wish she might marry someone else. There is a difference of opinions among the fuqaha( ’ Islamic law scholars) on the point whether an un married girl has no right to marry without obtaining the approval of her father, or whether the approval of the father is in no way a requisite for a legal marriage. However, there is another thing which is also undisputed and quite certain, that, if the father refrains from giving his approval for no reasonable cause, his right is forfeited and there is unanimity among all the fuqaha’ of Islam that the daughter then has complete freedom in choosing her husband. As mentioned before, there is difference of opinion as to whether the approval of the father is a necessary condition in the marriage of a daughter, and probably the majority of fuqaha’ especially the fuqaha’ of recent times, are of the opinion that the approval of father is not a necessary condition. However there is a group of fuqaha’ who consider it a necessary condition. Our Civil Law has followed that section of the fuqaha’ who base their precepts on the precondition and adopt the safer side. Because the subject is not something undisputed in Islam we shall not discuss it. But, from the social point of view, we consider it p: 90 necessary to deal with. Moreover, my own opinion is that the Civil Law has taken up the right course of action.

 

 

A man is a slave of his passions and a woman is a captive of her lovingness: The philosophy behind the fact that a virgin girl must not, or at least should not marry a man without the agreement of her father is not because a girl is considered to be deficient in some respect or is counted as inferior to a man as regards social maturity. If it were so what could be the difference between a, widow and a virgin, by which a widow aged sixteen year, is not in need of the agreement of her father, while a virgin aged eighteen years is, according to this opinion? Furthermore, if in the view of Islam, women were, considered incapable of managing their own affairs, why should Islam acknowledge the freedom of a grown up woman past puberty to manage her own economic affairs and accept transactions involving, say, hundreds of millions under- taken independently of the agreement of her father, brother or husband? There is some other philosophy behind this matter, apart from the aspect of the reasons of fiqh ( Islamic law). One cannot afford to ignore this philosophy and for that those who drew up the civil Law deserve a tribute. This matter has no connection with any deficiency, or lack of intellectual or mental development. It is related to an aspect of male and female psychology. It relates specifically to the predatory side of man’ s character, on the one hand, and to woman’ s trust p: 91 in the loyalty and sincerity of man. Man is a slave of his basic urges and woman is a captive of her love. What cause man to stumble and lose his footing is his basic motivational urge? According to psychologists, woman has more patience and endurance in the control of her passions. However, that which imbalances woman and enslaves her is the sweet voice of affection, sincerity, fidelity and love from man. It is here that she is trusting. A woman, as long as she is a virgin and has not come into direct touch with man, very readily believes in the soft whisperings of his affections. I do not know whether my readers read the views of Professor Reek , ) (? the American psychologist in issue No. 90 of Zan- e ruz magazine under the title“ , The world is not the same for men and women”, or not. He says that the best sentence a man can say to a woman is“ : my dear: I love you” and he also says“ , It is happiness for a woman; I mean, to win the heart of a man and maintain it for her whole life” . The Prophet ( s. a. w. a, ) . the divine psychologist, clearly stated this truth fourteen centuries ago, He said“ , A woman will never let go from her hearts the words of a man to her‘ : I love you” ,’ Predatory males always make use of this sensibility of women. The trap of “ My dear: I am dying from love of you” is the traps for hunting down girls p: 92 who have no experience of man. Recently the story of a woman, Afsar by name, who attempted to commit suicide and a man named Jawad, who deceived her, received much publicity and their case reached the law courts. This man employed the above- mentioned formula to deceive Afsar, and Afsar, according to Zan- e ruz magazine said: Though I did not speak with him, my heart wanted to look at him every day and every hour” . “ I did not fall in love with him, but, with an affection that cried out, I had a psychological need for him. All women are like this; before they fall in love, they have affection for the lover. For all girls and women, after they find a lover, love comes into existence. I was exception to this rule” . What we see here is a woman who was a widow and had had experience. Woe befall inexperienced girls! That is why it is necessary for a girl, who is “ inexperienced” with men, to have the agreement of her father, who knows the sentiments of men better, and who, with a few qualifications, wishes good and happiness for his daughter. The law has not in any way humiliated women in this matter. Rather it has extended the hand of protection over them. It would not be wholly illogical, if sons were to protest as to why the law did not make it binding upon them also to get the agreement of their fathers or mothers, and complain about daughters being at an advantage in p: 93 having to get the agreement of their fathers. I wonder how people, who are daily confronted by the stories of Buyuk, Zohreh, Adil and Nasrin, who see and hear them, can advise their daughters to rebel against their guardians and not take any notice of them. Such actions, in my opinion, are a sort of contemporary conspiracy between the persons who claim sympathy with women and those who hunt and chase women. The former prepare the prey, make the arrows ready, and then beat the victims towards the latter. *************************** The author of the forty proposals writes in issue No. 88 of Zan- e ruz magazine“ : Article 1043 is contrary to and deficient in comparison with every legal article in respect of puberty and mental maturity. It is also contrary to the fundamental of freedom for human beings and the charter of the United Nations”. It seems that the writer’ s conception is that the purport of the above- mentioned Article is that fathers have the authority to marry their daughters according to their own free will to anybody they like, or that they have the right to prevent the marriage of their daughters without any reasonable cause. What is the harm, and how is it consistent with fundamental freedom for human beings, if the choice of marriage is in the hands of the girls and if we consider the agreement of fathers a condition of the marriage being properly concluded, all this with the condition that fathers have no malicious intention and are not particularly tactless in withholding p: 94 their approval? It is a precautionary step and a vigilance which the law has provided to safeguard the rights of women who have had no experience of men and arises from a sort of misgiving about man’ s good nature. Our author writes: “ Our law- giver considers a girl of thirteen years capable of marriage who she is mentally mature enough to understand the meaning of being a wife or having a husband, a creature without the competence to buy or sell a few kilos of vegetables, and expects her to make the choice of someone as her partner for her whole life. However, our law does not allow a girl of twenty- five or forty, who has an education and has passed through university and has reached a high standard of learning, to marry of her own accord without the permission and approval of her common, illiterate father or paternal grandfather. Firstly, where exactly is it that the law can be taken advantage so that a girl of thirteen can marry without the permission of her father and a girl aged twenty- five or forty who has passed through university cannot do so? Secondly, the condition of having the father’ s permission is within certain limits and originates in fatherly affection and an understanding of the feelings of men towards women; and in case any father withholds his approval for no good reason, he forfeits his right. Thirdly, I cannot imagine that a judge has yet been found who claimed that according to the Civil Law, rational p: 95 and intellectual maturity is no condition in marriage, and that a thirteen year- old girl who, according to the writer, does not understand the meaning of marriage and the choice of a husband, may marry. The Civil Law, in Article 211 states“ : for the parties to the contract, to be considered competent, they must be of age of sound mind and mentally mature”. Although in the above article there occurs the phrase ‘ the parties to the contract’ and the section concerning marriage is not the section concerning contracts, because this matter is mentioned under a general rubric ( contracts, transactions and obligations, ) beginning from Article 181, the experts in the Civil law have take it to mean ‘ general competence’ for the conclusion of all agreements. In all old marriage contracts the name of the man was preceded by the expression ‘ adult, mentally sound and mature’, and the name of the woman was likewise preceded by the same words in their feminine form. How could it have been possible for the composers of the Civil Law to have ignored this salient point. The composers of the Civil Law did not imagine that the process of intellectual decline had reached to such a point that, in spite of the fact that they indicated most clearly the matter of ‘ general competence’, they should once again have to especially mention these conditions in the chapter marriage. One of the commentators on the Civil Law, Dr. Sayyid ‘ Ali Shaygan, considers that there is a contradiction between article 1064 which p: 96 says “ the one who concludes a contract must be of adult age, of sound mind, and must have intention”, which he thinks concerns a couple to be married and explains their competence for marriage but does not mention their mental maturity, and article 211 which mentions general competence. He then proceeds to his commentary. Now, article 1064 concerns the person who concludes the contract and such a person is not required to be of mature mind”. What can be complained about in this connection is the behavior of the Iranian people, and not the Civil Law of the land, nor the law of Islam. Amongst our men, most fathers still consider themselves to have absolute authority, just like the fathers of the jahliyyah ( the pre- Islamic period). They imagine that girl’ s expressing herself in the matter of the choice of her husband, her partner for life, and the father of her future children, is an act of immodesty and against decorum. They pay no attention to the intellectual maturity of their daughters, and admitted prerequisite according to Islamic commandments. There are very many marriages concluded before the girls become of mature mind and, in the view of Islamic law, these are null and void. Those who solemnize marriages do not inquire into and do not request full information regarding the intellectual maturity of the girls, and they consider the attainment of puberty by a girl as a sufficient requirement, although we know of many stories of great ‘ ulama’ concerning their examination if p: 97 the intellectual and mental maturity of girls. Some of the ulama have required the religious maturity of the girl as a condition. They would only solemnize the marriage or those girls who could explain with reasoning the basic principles of Islam. Unfortunately, most guardians and solemnizers of marriages do not observe these considerations. People like the author of the forty proposals do not like to criticize the conduct of those persons who break the law. They prefer to put all the blame on the Civil Law and under mine the faith of people in the Civil Law, which is rooted in the Islamic laws. There is one objection which, in my view, can he made against the Civil law in respect of Article 1042. This Article reads: “ After completing her fifteenth year, a girl may still not marry without the permission of her guardian until she has completed eighteen years” According to this Article, a girl between fifteen and eighteen years of age, although she may be a widow, cannot marry without the permission of her guardian. However, neither according to the Shi’ ite jurisprudence, nor on the basis of reason, should a woman who fulfils the conditions of puberty and mental maturity, and who has once before been married,need  to get the approval of her guardian.