The rights of women in islam chapter 3

 

chapter 3

 

Part Eight: Dowry and Maintenance point One of the oldest customs in the relationships within the human family is that man has acknowledged the rights of the woman to a dower ( mahr) on the occasion of marriage. He used to pay something of value to the woman or to her father. More over, he was responsible, during the whole period of marriage, for the maintenance and upkeep ( nafaqah) of his wife and children. What is the origin of this custom? Why and how did it come into existence? What form does the dower take? Why should the husband pay for the maintenance of the wife? If it is agreed that both the husband and the wife should abide by their natural and human rights, that absolutely just and humane relations should subsist between them, and that man should live with p: 222 woman entirely in his capacity as a human being, is there any justification for dower and maintenance? Or are dower and maintenance handed down as a remnant from those ages when woman used to be the property of man? Should dower and maintenance be abolished, according to the demands of justice and equality of human rights, especially in the twentieth century, so that marriages take place without the right to dower and maintenance, and should woman bear her own financial requirements, and also share equally in defraying the expenses arising from the children? We begin our chapter with the topic of the dower. We shall see how the dower came into existence and what its purpose was, and how sociologists have interpreted its coming into existence.

A short history of the dower: Sociologists say that in prehistoric times human beings led a savage life, lived in tribal groups, and that, for unknown reasons, marriage among blood relations used to be considered taboo. The young men of the tribe who wished to marry were obliged to make the selection of their spouses and lovers from other tribes and for that purpose they had to approach the other tribes to make this choice. In those ages man was not aware of the part he played in the birth of a child. In other words, he did not know that his intercourse with a woman was effective in bringing about the birth of a child. He considered children to be the children of his wife and not his own. Despite p: 223 the fact that he could see the likeness of his features in the children, he could not understand the reason for that likeness. Consequently, men used to consider children, as well as themselves, the children of women. The lineage was constructed by reference to mothers, and not by reference to fathers. Men were considered barren and unproductive and after marriage they lived in the tribe of the woman like parasites, and the woman needed him only for his company and his physical strength. This period according to sociologists, is known as the matriarchal period. It was not long before man came to know of his part in the birth of children and identified himself as the real person to whom his children were to be attributed. From that time on, he brought woman under his control, and took the position of the head of the family; the patriarchal period, as it is called, began. In that age, too, marriage between blood relations was not considered admissible, and man was obliged to select his spouse from some other tribe and bring her to his own tribe. As there was always a state of conflict and hostility among tribes, the selection of spouse was by means of abduction, in other words, a young man abducted the girl of his choice from another tribe. Gradually, peace instead of hostility reigned, and the different tribes could peacefully live together. At that point the custom of abduction became unnecessary, and in order to get the girl of p: 224 his choice man used to bind himself to the service of the father of the girl and in lieu of the services rendered by the would- be son- in- law, the father of the girl gave his daughter to him, and then he would bring that girl to his tribe. Eventually the economic situation improved, and man reached the conclusion, that, instead of working for years for the father of the bride, it was preferable to present a worthy gift to him at the time of marriage, and thus obtain his daughter from him. He begun to do this, and from here the dower came into existence. Thus according to the sociologist, in the first period, man lived as a parasite and as an attendant on woman. In that period the woman used to rule over the man. In the subsequent period, when the power felt into the hands of man, he abducted the woman from her tribe. In the third period, in order to obtain the woman of his choice, man used to go to the father of the woman and work several years for him. In the fourth period, man paid an amount of money as a ‘ present’ to the father of the woman, and from here the custom of the dower began. They say that from the time mankind dropped the matriarchal system and adopted the patriarchal one, man made a woman his slave, or at least his servant or laborer, and looked on her as an economic tool which might occasionally satisfy p: 225 his passion also, he did not give her any social or economic independence. The product of her labor was meant for others, namely, the father or the husband. Woman had no right to select a husband for herself or to commence on her own initiative, or for her own profit, any business for economic or financial amelioration. As a matter of fact, they say, the money that man paid her as a dower, and the money he spent for her maintenance, was in lieu of the economic gain that he derived during the period of his marriage to her. The dower in the Islamic system of rights: There is also a fifth period, about which sociologist and theory- makers are silent. This is the period in which man, on the occasion of the marriage, presents a gift to the woman herself. Neither of the presents has any share or right in that gift. No sooner does the woman receive that present from the man, than she attains her social and economic independence. Firstly, she makes the selection of her husband by her own free will, and not in compliance with the will of her father or brother. Secondly, as long as she is in the house of her father, and, likewise, as long as she is with her husband, no one has the right to exploit her for his own benefit. The profits from her work and toil are for herself, and in the matter of her rights she does not need the guardianship of man. Man, as far as “ exploiting” p: 226 is concerned, only has the right to sexual intercourse with woman in the period in which she is his wife; and as long as the marriage lasts, and man has sexual relations with her, he is responsible for arranging the comforts of life for her, as far as his means allow him. This period is the very period which Islam acknowledges and it has laid the structure, of marriage on this foundation. There are a number of verses in the Qur’ an ordaining that the woman’ s dower belongs to her and not to anybody else, and that for the duration of the marriage too, man should be responsible for defraying the expenses of the maintenance of his wife. More over, any profit that a woman earns by way returns for her work is her own income and not anybody else’ s, whether father or husband. It is now that the question of dower and maintenance becomes a bit of a puzzle. For, when the dower used to belong to the father of the girl, and the girl used to go as a slave to the house of her husband, and the husband used to exploit her, the reason for the dower was in consideration of the purchase of the girl from her father. Besides that, the justification for maintenance was that every master has to bear the expenses of his slave. When it was resolved that nothing was to be given over to the father of the girl, and that the husband had no p: 227 right to exploit her and derive any economic benefit from her, and that woman was economically independent, and that this independence was to such an extent that, as far as rights were concerned, she was not in need of the guardianship permission and supervision of her husband, why, then, should there be a payment of dower, and an arrangement for her maintenance. A look at history: If we want to understand the philosophy of dower and maintenance in the fifth period, it is necessary to divert our attention for a while to the four periods that were listed previously. As a matter of fact, whatever is said on this matter is only a series of suppositions and guesses. These are neither realities of history, nor scientific facts derived from experiment. A few ideas brought together here and a few philosophical assumptions about man and the universe there, and these suppositions and guesses come into existence. We should not be too much of a hurry to believe all that is said about the matriarchal period, as they call it, nor all the things that are said about the selling of daughters by their fathers and the exploitation of women by their husbands. In their suppositions and guesses, two things are especially noticeable. Firstly, an effort is made to interpret the early history of mankind as extraordinary cruel, crude and devoid of all human sentiments. The other thing is that nature, which always functions with wonderful planning to reach its objective, is totally ignored. This kind of interpretation p: 228 and theory about mankind and nature is acceptable to a person in the west, but for a person in the east, provided he is not under the spell of the west, it has no value. Because of certain special reasons, an occidental does not have a good understanding of human sentiments, so naturally he cannot believe that the spark of human feeling and the warmth of emotion play a basic role in human history. An occidental’ s characteristic way of thinking is that when he gets up from the economic side of his bed, in other words, when he sees history from the economic angle, he sees bread alone. Then, in his eyes, history is a machine, and will not budge unless you give it nourishment. When he sees human affairs in terms of sex, humanity and the history of mankind with all its literary, artistic, moral and religious facets and manifestations of glory and intellectual splendour is nothing but the play of sublimated sexual forms. Likewise, if he looks at things in terms if domination and gaining the upper hand, the adventures of mankind seem to be entirely a tale of bloodshed and cruelty. In the middle- ages, the people of the west saw torture in religion and in the name of religion, they experienced atrocious persecution, and witnessed cases of people being burnt alive. That is why they are afraid of the name of God, of religion and everything associated with it. So despite the fact that they see abundant signs p: 229 and clear, verified indications of metaphysical purposes that the universe is not left to take care of itself, occidentals rarely venture to acknowledge the real final cause. We do not ask these interpreters to believe in the existence of the prophets, who appeared throughout history, expounded and heralded justice and integrity, campaigned against deviation, and suffered for the success of those campaigns. We only wish them not to pass by and ignore the conscious role of nature. There is no doubt that, in the history of the relations of women and men, excessive cruelties and innumerable atrocities have been chronicled. The Quran has narrated the most horrible of them, but still it cannot be said that the entire history of these relations has been one of cruelty and barbarity.

The real philosophy of the dower: We believe that the introduction of the dower is the result of a very wise plan which is employed in the context of creation to keep a balance in the relations of men and women and to keep them united. The dower has its basis in the fact that the way of loving of man and woman is different in each of them within the scheme of creation. Those who are spiritually enlightened believe his law to be transmitted throughout all existence. They say that the law of love, the bond of affection, attraction and attractiveness dominates all creatures and all things that exist; with the peculiarity that all creatures and all things that exist are different in so far as every creature has p: 230 to fulfill a particular role. Thus an earnest longing in one and a calm indifference in the other is the way things are. The famous Iranian poet, Fakhru’ d- Din ‘ Iraqi wrote: Who knows what the ecstatic harp of love is Whose plectrum sets the nine heavens spinning? There is a secret behind the veil; If you knew it You would understand behind which allegory reality is to be founded. It is love which at every instant colors everything else; In one place, glory; in another submission and need. Whoever comes as the lover burns with ardor, Whoever is dressed as the beloved waits with patience? In connection with the chapter where we stated the differences between man and woman, we said that the natures of the feelings man and woman have towards each other are not alike. The law of creation has ordained beauty, dignity and an element of indifference on the art of woman, and neediness, beseeching, love and serenading on the part of man. The bodily weakness of woman has thus been harmonized with the physical strength of man, and this very thing has caused man to always take the initiative in asking woman’ s hand in marriage. We have seen before that, according to the version of the sociologists, it was always man who went out in search of woman, even in the matriarchal and patriarchal periods. Scholars say that man is more sensual than woman. In Islamic traditions it is narrated that man is not more sensual than woman, rather, it is exactly the other way round. However, woman p: 231 is created with more self- control against her passion, more strength of will. The result of both is the same: man is weaker than woman in controlling his instincts. This peculiarity has always given the woman the opportunity not to pursue the man and not to hand herself over to him so easily. On the contrary, she has always forced the man to court her, and to take steps to win her over. As one of the first steps to seeking her pleasure, and as token of respect for her acceptance, a gift was given to her. Why is it that individuals of the male sex were competing, disputing and fighting amongst themselves for the hand of a female, and why it is the individuals of the female sex never showed any signs of desire or impatience to take possession of the male sex? It is for the very reason that the roles ascribed to the male and the female sexes are not the same. It has always been the role of the male and not of the female to be the one who asks, and the female sex has never, with any ardent desire, restlessly pursued the male sex. She has always shown herself to be unconcerned and indifferent. Dower is connected with the modesty and chastity of a woman. Woman has been made instinctively aware that it is necessary for her honor and respect that she should not give herself up freely to the authority of man but should give herself p: 232 worth. These are the reasons that made it possible for her, in spite of all her physical weaknesses to draw man to her threshold, and compel men to compete with each other; by withholding herself from the reach of man she created romance. So many Majnuns are made to run after their Laylas [ 1] and when she entrusts her body in marriage to man she accepts a present and a gift from the man as a token of his sincerity. It is said that in some savage tribes, girls who were sought after by several restless suitors and lovers used to persuade them to duel between themselves. The one who defeated or killed his rival used to get the girl. Some time ago, the daily newspapers in Tehran wrote that some girl had suggested to two boys, her lovers that they should duel here in Tehran. Before her eyes, they fell upon one another with knives. For those persons who consider power to be limited to only physical strength, and consider the history of the relations of women and men to be entirely a story of cruelty and exploitation by man, it is unbelievable that woman a weak, delicate being has the power to throw members of the strong and powerful sex against one another. Nevertheless, if someone has just a little insight into the skillful plan of creation and the wonderful hidden power that was invented in the being of woman, he will be aware that these things are not strange. Woman p: 233 has had a great deal of influence over man. The influence of woman over man has been greater than man’ s influence over woman. In most of his feats, his bravery, heroism, ingeniousness and individual characteristics, man is indebted to woman and her delicate self- control, indebted to woman’ s modesty and purity, indebted to her attractiveness. Woman has always built man, and man society. When the modesty, purity and self- control of woman disappear, and woman aspires to play the part of man, man will first of all eat away the dower of woman, then man will forget his manliness, and society will be destroyed. The same female power, by which she could keep her dignity throughout the long ages of history by not pursuing man by which she could draw him to seek for her at her threshold, by which she could make men fight in rivalry with each other for her hand, by which she could drive men to the degree of killing each other, by which she could guard her modesty and chastity and could keep her body covered from the eyes of man, by which she could display herself as something mysterious, by which she could be a source of inspiration to man and an instigator of man’ s feelings of love, by which she could be the motivation of his skills the inspirer of his valor and ingeniousness, and by which she could create in him such emotions as to make him sing her praise in songs of love p: 234 and adoration and reduce himself to humility, humbleness and insignificance before her, this same power impels man to present her, on the occasion of marriage, with what is called a dower. The dower is one of the articles of a general character of traditions, the foundation of which is established in creation itself, and has been provided by nature. Dower as in the Qur’ an: The Qur’ an did not introduce and devise the dower in the form we spoke of above in discussing the fifth stage. The reason is that the dower in this form was invented by natural creation. The only work the Qur’ an did was to restore the dower to its natural form. The holy Qur’ an with unrivalled fineness and sensitivity says: صدقة نِحْلَةً صَدُقَاتِهِنَّ النِّسَاءَ وَآتُوا And give the women their dower as a gift spontaneous( ; 4: 4). That is, the women’ s dowers which belong to themselves ( and not to their fathers or brothers) and are gifts and presents from you to them are to be given to them. The Qur’ an has referred to three basic points in this verse: Firstly, dower is referred to as sadaqah with a dhimmah ( short ‘ u’) following the letter ‘ d’, and not as the usual mahr. Sadaqah is derived from the root sadaq, and dower is thus sidaq or sadaqa صدقة for it is a token of the truthfulness and earnestness of the affection of the man. Some commentators like writer of al- Kashshaf44 have made this point clear. Similarly, according to the opinion of Raghib Isfahani, in his book Mufaradã t p: 235 gharib al- Qur’ an ( The Obscure words of the Qur’ an, ) the reason that, sadaqah with a fathah ( short ‘ a’) following the letter ‘ d’ is written saduqah is because it is the sign of sincerity of spiritual faith. Secondly, the pronoun hunna ( third person feminine plural) in this sentence means that it is ordained that the dower belongs to the woman herself and not to her father or mother. Dower is not the wages for having brought her up, nursed her and fed her. Thirdly the word nihlatan ( willingly, spontaneously, and not reluctantly) makes it complete clear that the dower has no other purpose apart from being an offer, a present, or a gift.
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[1]: Majnun and Layla are the idealised lovers in Arabic and Persian literature. (Tr).

Two kinds of sentiments in animals: This is not especially the case just for human beings. In all animals who are divided into two sexes, because this is needed for completeness, the male is born more needy, that is, his feelings are more in need of the female than vice versa. This is the reason that, at the time of their mating, the male takes many steps to attract the female and make her accept. It is also instrumental in balancing the relations of the two sexes, so that the male does not misuse his strength, and so that he keeps an attitude of humility and meekness. Presents and gifts in illicit relations: Presents are not confined to marriage and the legal relation of wife and husband. When a man and a woman want to take pleasure from each other against the divine law, and want, p: 236 as it is called‘ , free love’, even that, it is the man who gives presents to the woman. If they incidentally spend money on coffee, tea or food, the man knows that it is his function to pay the bill. Woman considers it a sort of insult for her to have to pay for man. For a young man“ , having a good time” requires money and financial resources, and, for a young girl, it is a source of getting presents. These habits prevail even in unlawful relationships, and the root- cause of this is the different natures of the feelings of women and men towards each other. European love- affairs are more natural than their marriages: In the western, world, where, in the name of the equality of human rights, they have altered family rights from their natural form, and have tried, despite the law of nature, to put man and woman in the same situation, and leave them to act out the same roles and to perform the same duties in the family, still, when ‘ free love’, as it is called, appears, and the laws of the land do not change man and woman from their natural course man performs the same function, which is natural to him, of seeking, requesting giving something of value, and spending money. Man presents gifts to the woman, and bears her expenses, in spite of the fact that in European marriage there is nothing like a dower, and, as for maintenance, the burdensome responsibility is left to the lot of the woman. It p: 237 means that European love- affairs are more in agreement with nature than European marriages. The dower is one piece of evidence which leads to the conclusion that woman and man are created with different aptitudes, and that the law of creation has bestowed upon them different attributes, according to their natural and innate rights. *************** Dower and Maintenance 2 point In the last section we dealt with the philosophy of the dower and the reason why it came into existence. It will by now be clear that the basis of the dower is the fact that in relations between man and woman different roles are assigned to each of them by the law of creation. It will also be clear that the dower originates in man’ s feelings of kindness and gentleness, and not from his harsh, domineering and possessive characteristics. The woman’ s own part in this matter is her characteristic attitude of self- restraint, and not feebleness or lack of strength of will. The dower is a contrivance of the law of creation to raise the worth of woman and to elevate her to a higher status. The dower gives personality to a woman. For woman, the moral value of the dower is greater than its material value. The customs of the pre- Islamic period that that were abolished by Islam: The holy Qur’ an abolished the customs of the “ Time of Ignorance( ” the pre- Islamic period) concerning the dower and restored it to its original and natural position. In the pre- Islamic period, fathers and mothers of girls considered the dower as their right in lieu of their services in having brought them up and p: 238 nursed them. In al Kashshaf and other commentaries, it is written that when, a daughter was born to someone and somebody wanted to congratulate him, he used to say النافجة لک هنیئاً ( hani’ an laka’ n- nafijah, ) that is, congratulations, may she be a source of wealth ( lit. a pouch of musk) for you”. This was an allusion to the fact that father of the girl would marry her in future and would receive the dower. In pre- Islamic days, fathers, or, in case they had died, the brothers believed they had the right if guardianship and power over daughters. In the first place, they married their daughters according to their own choice and not according to the will of the girls, and, in the second place, they considered the dower of their daughters to belong to themselves and not to their daughters They also used to exchange daughters. The custom was that one man used to say to the other“ , I will marry my daughter ( or sister) to you in exchange for your daughter ( or sister) becoming my wife”. The other man, then, would agree to it. In this way each one of the two girls became the dower for the other girl, and was married to the father or brother of the other girl. Such a kind of marriage was called a shighar marriage. Islam annulled this custom. The Holy Prophet commanded: الإسلام فی شغار لا ( la shigara fi’ l- Islam, ) that is, the exchange of daughters or sisters, is forbidden in Islam. It is mentioned p: 239 in Islamic traditions that not only does the father have no right to the dower of his daughter, but that he also cannot put down any other condition in his own interest, although the dower may have been paid to the girl on marriage. This means that the father has no right to any personal benefit from the marriage of his daughter, even though it may be with regard to something different from the dower. Islam annulled the system whereby the sons- in- law worked for the fathers of the bride, which, according to sociologists, was the custom when there was no system for the exchange of wealth. The work of the sons- in- law for the fathers of the brides was not only because the fathers wanted to profit from their daughters. There were other causes and motives also, and, quite possibly, it was necessary at one stage of civilization, and, to its own extent, was not oppressive. However, such traditions were certainly practiced in the ancient world. The story of Moses and Shu‘ ayb, which is told in the Holy Qur’ an, is evidence of existence of such custom. When Moses escaped from Egypt and reached the well of Madyan and the daughters of Shu‘ ayb were standing with the sheep with nobody paying attention to them, Moses felt sympathy for them and drew water for their sheep. The daughters described the occurrence of that day to their father, who sent one of them to invite Moses to his house. After getting to know one another, Shu‘ ayb p: 240 one day told Moses that he wished to give one of those two girls in marriage to him provided he worked for him for eight years, and in case he himself wanted to work for another two years that would be an act of grace. Thus, he would work for him for ten years; Moses accepted this and he accordingly became Shu‘ ayb’ s son- in- law. That was the custom, those days. The reason for it lies in two things. One was the non- existence of wealth. The only helpful thing that a son- in- law could offer to his bride or to the bride’ s father was probably to work for them. The other thing was the custom of the father giving something to the daughter. Sociologists believe that the custom of the father giving something to the daughter was an old one. In order to be able to do this, the father took the future son- in- law in his service or received money from him. In practice, all that the father of the girl received from the son- in- law was for the daughter. Anyhow, this custom was abolished in Islam, and the father of the girl has no right to consider the dower as his property, even in the event that his aim and motive was to spend it for his daughter. It is the daughter herself who has the right to exercise her will regarding that amount. She has the authority to use it in any way she likes. It has been expressly mentioned in Islamic traditions p: 241 that the kind of dower just mentioned above is not permissible in Islam. In the “ Time of Ignorance” there were also other customs which practically used to deprive women of their dower. One of those customs was inheriting the wife. In the case of the death of a man, his inheritors, like his sons or brothers, inherited his wives in exactly the same way as they inherited the property of the deceased. After the death of a man, the son or the brother of the deceased assumed that the marriage right was still valid and considered himself empowered to marry the wife to anybody he liked and take the dower for himself, or, otherwise, to take her as his own wife without a new dower on the strength of the dower that the deceased had paid for her in the past. The Holy Qur’ an annulled the custom of the inheritance of the wife. It ordained: کَرْهًا النِّسَاءَ تَرِثُوا أَنْ لَکُمْ یَحِلُّ لَا آمَنُوا الَّذِینَ أَیُّهَا یَا O believers, it is not lawful for you to inherit women against their will( . 4: 19) In another verse, the Qur’ an prohibits absolutely marriage with the wife of the father, even if it is not by way of succession, and even if she wishes to marry of her own free. It is ordained: ِ آبَاؤُکُمْ نَکَحَ مَا تَنْکِحُوا وَلَا And marry not women whom your fathers married( . 4: 22) The Holy Qur’ an abolished all those customs and practices which were detrimental to the woman’ s dower. One of them was p: 242 that when a man was bored with, and had developed an aversion to his wife, he could maltreat her and subject her to torture. His motive for torturing her was she would agree to a divorce, and he would be able to take back all or part of what he had paid to her as her dower. The holy Qur’ an ordered آتَیْتُمُوهُنَّ مَا بِبَعْضِ لِتَذْهَبُوا تَعْضُلُوهُنَّ وَلَا Neither debar them that you may go off with part of what you have given them( . 4: 19) Another one of those practices was that a man would marry a woman and negotiate a large amount as the dower, but as soon as he was fed up with her and wished to marry a new wife, he would accuse the poor woman of obscenity and tarnish her reputation and then would claim that the woman did not deserve to be his wife from the very beginning and that the
marriage should be dissolved, and would claim that the dower he had paid to her be returned to him. The Holy Qur’ an took notice of this practice and forbade it. Islam has its own system of dower One of the undisputed laws in Islam is that a man has no right over the property or labor of a woman. He can neither order her to do a particular job of work for him, nor take without her permission the money which she may have earned by doing some work. In this respect a woman and a man have equal status, in contrast to what was p: 243 the usual practice in Christian Europe up to the beginning of the twentieth century. According to Islam, a married woman is not under the control of her husband as far as her business dealings and her rights are concerned. She is perfectly free and independent in the execution of her business affairs. In spite of the fact that Islam gave woman this much financial independence from her husband and in spite of the fact that it did not assign any right to him over her wealth, over her work or over her dealings, it did not annul the dower system. This in itself makes it evident that according to Islam it is not the meaning of the dower that the man should derive financial benefit from the woman, and should exploit her physical power. So we arrive at the conclusion that Islam has its own system of dower. This system of dower and its rationale should not be mistaken for the other systems of dower, and the objections that are reasonable when made against the other systems should not be considered applicable to this system too.

Rule of nature As we said in the former sect the Holy Qur’ an explicitly mentions that the dower is a gift. The Qur’ an considers this present or gift to be obligatory. It has scrupulously observed the obscurities of human nature, in order that both man and woman, each of whom has been assigned his or her special role as regards their mutual affections, should not forget that p: 244 the need for the dower is insisted upon. The role of woman is that she should respond to the love of man. A woman’ s love is good when it is a reaction to the love of a man, but not as the instigator of that love. An instigating love from a woman that is, a love that begins from the woman without the man has desired her, is bound to fail, and is a cause of the diminishing dignity of the woman. On the other hand the love which develops in a woman in response to the love of a man will neither fail itself nor will it discredit the personality of the woman. Is this because a woman is not faithful and because the love of a woman is unstable and so one should not trust the love of woman? This is both true and false. It is true when the love originates from the woman. If woman takes the lead in loving a man and makes him the object of her love, the fire of her love is soon extinguished. One should not trust this sort of love. And it is untrue when the fire of the love of a woman is kindled as a reaction to the true love of a man and in response to his sincere love. This kind of love is practically impossible to do away with. It fails only when man’ s love becomes cold, and then, of course, the woman’ s love comes to an p: 245 end. The love which is natural to a woman is this form of love. The reputation of a woman for faithlessness comes from the first kind of love, and the tributes that are paid to her faithfulness relate to cases of love of the second kind. If society wishes to place the relations of a husband and wife on a sore footing, there is no alternative but to observe the path that the Holy Quran has ordained. One should keep the laws of nature in view, and should especially remember the respective roles of men and women in the matter of love. The law of the dower is in harmony with nature for the reason that it is the sign and indication of the fact that love started from the man, and that the woman is responsive to his love; and so man, as a token of his respect, presents her with a gift. This is the reason that the law of the dower which is an article of an absolute and fundamental constitution which was drawn up by the Designer of the human disposition, should not be annulled under the pretext of equality of rights for men and women. As you have seen, the Qur’à n made changes only in the customs, practices and laws of the pre- Islamic period in respect of dower, much against the will of the people of those days, while it could have annulled the dower and entirely relieved the people of that burden. So it cannot p: 246 be said that the Qur’ an does not attach any importance either way to the continuance or discontinuance of the dower. Criticisms: Now that you are familiar with the Islamic view and its rationale, it is better that you also hear the comments of the critics regarding this Islamic law. Ms. Manuchahriyan, in her book Intiqad bar qavanin- e asá si va madani- e Iran ( Criticism on the Law and Constitution of Iran, ) in the chapter that she starts off under the title of “ Dower”, writes: “ Just as a man must spend money to take possession of an orchard or a house or a mule, so he should spend money out of his pocket for the purchase of a woman, and, just as the price of a house, an orchard and a mule varies according to its being large or small, ugly or beautiful, useful or serviceable, the price of a woman also varies according to her ugliness and beauty and to her being wealthy or otherwise. Our kind and stalwart law- givers have drawn up twelve articles concerning the price of a woman, and their rationale is that if there were no question of money in this matter, the firm relationship or the husband and wife would become weak and would be likely to break up quickly” . Had the law of dower come from foreign sources, would it then also have been the object of so much ill- feeling, false accusation and disparagement? May be a person who wants to buy another person will give him some money; p: 247 but does that mean that the custom of offering a present or a gift should be abolished? The source of the law of the dower which is made mandatory in the Civil law is the Qur’ an. The Qur’ an explicitly mentions that the dower is nothing but a gift, a present. Besides that Islam has organized its laws in such a way that a man has no right to lake economic benefit from the woman. In such conditions, how can the dower be referred to as the price of a woman? You could possibly say that Iranians, in practice, do derive financial benefit from their wives. I accept that many Iranian men do. Nevertheless, how is his related to the dower? Men do not say that because they paid a dower, they should domineer our wives. The domineering of Iranian men over their wives is because of other reasons. Instead of reforming men, why should you destroy the law of nature and encourage evil? In all this talk and commentary there is only one implied motive, and that is to induce Iranians and all orientals to forget themselves, the philosophy of their lives, and their human standards, and adapt themselves to a foreign mould, so that they may be made ready to be absorbed more easily. Ms. Manuchahriyan says“ : If woman is to be economically the same as man, then why should it be necessary to believe in maintenance and dower for her. Just as these precautions and provisions are not made p: 248 for men, so, in the case of woman also, there should he no occasion for them” . If we examine this remark analytically, it means that in eras when people did not believe in the right of ownership and economic independence of women, dower and maintenance may have been to a certain extent, reasonable, but that if a woman is given economic independence, as this independence has been given in Islam, then there is no reason for dower and maintenance. These people have supposed that the purpose of dower is only so that, despite her being deprived of economic rights, money should reach her. Would not have been better for them to have referred a little to the verses of the Qur’ an, and to have pondered for a while over how the Qur’ an has represented dower, and thus got to the core of its rationale? They could then have been proud that the revealed Book which is followed in their country contains such a high level of thought. In issue no. 89 of Zan- e ruz page 71 after stating the miserable condition of women in the pre- Islamic period, and referring to the help given by Islam in this connection, the author of the forty proposals writes“ : Because men and women are created equal, the payment of any sum or wages by one to the other has no logic and is not a reasonable thing. Just as man is in need of woman, man is also needed by woman. They are not created p: 249 indispensable for each other, and are in an equal position in this respect. So, to make it compulsory for one to pay a sum to the other has no sense. Nevertheless, since divorce is in the hands of man, woman has no security for a shared life with man, and so a right is given to the woman that, besides the trust in the person of the husband, she may demand a sort of economic assurance and guarantee from man” . The same author writes on page 72 that if section 1133 of the Civil Law, which says that a man can divorce his wife any time he pleases, is amended, so that divorce does not depend on the sweet will and fancy of man, dower will completely lose the rationale for its existence. All that we have said up to this time clearly shows the groundlessness of these ideas. It was made clear that dower is not a sum or wages, and that it is quite reasonable too. It is also evident that man and woman in their mutual need for each other are not alike, and that creation designed that they exist in two different modes. The most fallacious of all is the reasoning if the above mentioned author who has interpreted dower as a financial security against man’ s right of divorce. He is altogether wrong to have claimed that the cause of Islam’ s ordaining the dower is this. Such persons should be asked whether Islam, gave the right of p: 250 divorce to man, so that woman should be in need of financial security, besides that, it would mean that the reason the Holy Prophet gave a dower to his wives was that he wanted to give them a financial security against himself. Similarly, it would mean that on the occasion of the marriage of ‘ Ali to Fatimah, he stipulated a dower for her so that he might obtain a financial security in favour of Fatimah against ‘ Ali, and thus find a source of confidence. If it were so, why did the Holy Prophet advise women to give back their dower to their husbands and mentioned divine rewards for this? Besides that, why did he advise that the dower of a woman should as far as possible not be too much? Was there any other object in the eyes of the Prophet other than that the presenting of gift called the dower by the man, and the giving back of the dower or something equivalent to it by the woman to the man should be a source of an increase in the affection and firmness in attachment between the husband and the wife? If Islam’ s aim was that the dower should serve as a financial security, why does it say in the revealed Book: And give the women their dowers as a gift spontaneous نِحلةً صدُقاتِهن النِساء وأتُوا and not, And give the women their dowers as a security. وثِیقةً صدُقاتِهن النِساء وأتُوا Above all, the writer of the forty Proposals thinks that the p: 251 custom and practice of dower at the beginning of Islam was the same as it is now. Nowadays, no doubt, the practice is generally that the dower has an aspect of a guarantee and an undertaking, that is, the man makes an agreement for a certain amount in the form of dower, but the woman does not generally demand it, except on the occasion of a difference or dispute that might arise between them. This kind of dower can transform itself into a security. In the early days of Islam, the practice was that the man used to give as a dower in money or in kind, anything that he undertook to part with. So it cannot be said that the object of Islam on ordering the dower was to provide woman with a financial security. History shows evidence that the holy Prophet was never ready to hand over a woman to a man without the payment of the dower. An incident is reported with a slight difference between the Shi’ ite and the Sunni books that a woman came to the Holy Prophet and stood before the gathering“ . O Messenger of Allah,” she said “ accept me as your wife” . The Holy Prophet, in respect of the request of the woman, kept silent and said nothing. The woman sat down in her place. One of his companions stood up and said“ , O Messenger of Allah, if you are not ready I am prepared to accept her as my wife” . The Holy Prophet p: 252 asked“ : What would you submit as a dower“ ” ? I have not got anything” was the reply“ . This cannot be. Go to your house; perhaps you will find something there to give as a dower to this woman,” The Prophet said. The man went to his house, came back and said“ , I could not find anything in my house”. The Prophet said“ , Go again and look well, If you can find a metal ring, even that would suffice” said the Prophet. He went twice and came back and said“ , I cannot find even a metal ring in my house. I am ready to present her with the clothes that I am wearing as her dower”. Another one of the companions, who knew the man, said“ : O Messenger of Allah, by Allah, this man has no other clothes except those he is wearing. So half of the clothes may be assigned as the dower of the woman”. The Prophet said‘ : If half of these clothes are to be the dower of the woman, who will wear which half? If one of them wears them, the other will remain undressed. No, it can not be like this” . The man who had made the request sat down The woman also waited in her place. The gathering took up some other topic and the discussion lasted for a long time. The man who had requested the hand of the woman started to go away, but the Holy Prophet called him. “ Come over here” ! He came. “ Speak, tell me, can p: 253 you recite the Qur’ an” ? “ Yes, O Messenger of Allah, I can recite some of the surahs” . “ Can you recite from memory” ? “ Yes, I can” . “ Very good. Now it is all right. So I marry this woman to you and her dower will be that you teach her the Qur’ an” . The man took the hand of the woman and went away. There are many other things which could be said concerning the dower, but we will close our discussion at this point.

Dower and Maintenance 3 point We have stated the Islamic view of dower and the rationale of dower. Now it is suitable time to discuss the subject of maintenance. We should take note beforehand that in Islamic laws, maintenance, like dower, has a status and position special and peculiar to it, and so it should not be confused with, or considered the same as what is the case in the situation that was or is now being witnessed in the non- Islamic world. If Islam had given the right to man to avail himself of the services of woman, and to consider the returns of her labor and toils and virtually all the wealth that she earned as his own, the object and rationale of maintenance would have been evident. The reason would have been obviously, that if some person makes use of an animal or another person to derive some financial benefit, he should necessarily provide the expenses for that animal or person’ s livelihood. If carter does not give grass and oats to his horse, the horse will not draw his p: 254 cart for him. However, Islam does not recognize such a right for man. A woman is given the right of ownership: she can earn wealth, and man is not given the right to appropriate the wealth which belongs to her. Still, it is considered the duty of man to provide for the expenses of the family. He should defray the expenses of the wife, the children, the servant, the maid- servant, the house, etc. What is the reason for this? Unfortunately our westernized people are not ready to think these matters over for a moment. They look into our faces and repeat exactly the same criticisms about the Islamic systems which occidentals repeat about their own systems of rights; and of course the latter criticisms are right. As a matter of fact, if anybody says that the maintenance of man in the west until the nineteenth century was nothing but a ration of food, drudgery, and the insignia of slavery, then he is right in his criticism. For if it was the duty of woman to carry out the housework of man for free and to have no right of ownership, the maintenance that was given to her was, no doubt, a kind of ration given to a prisoner, or fodder given to a beast of burden. But, if, somewhere in the world, we come across a special law which relieves woman from the compulsory duly of carrying out a man’ s homework, gives her the right to amass wealth, gives her complete p: 255 financial independence, and yet still exempts her from contributing to the family budget, that law must be based on some other rationale. The pros and cons of that rationale deserve to be fully studied and seriously examined. The repression of European women up to the second half of the nineteenth century: In his commentary on the Civil Law of Iran on page 362, Dr. Shaygan has written: The right of independence that a woman has concerning her property and assets, and which Shi’ ite jurisprudence has acknowledged right from beginning is not to be found in ancient Greece or Rome or Japan, or, till a short time ago, in the rights of most of countries. This means that woman has been denied the right to possess her property, just like a minor, a lunatic or someone forbidden by law. In England, where the personality of the woman was wholly obscured in the personality of her husband, two laws, one in 1870, and the other in 1882, were passed under the name of “ The Married Woman’ s Property Act” and thus the interdiction was raised from woman. In Italy in 1919 AD, a law removed woman from the category of interdicted persons. In the Civil Law of Germany after 1900, and in the Civil law of Sweden after 1907, a woman has had the same legal capacity as her husband. “ However, a married woman in Portugal or France is still on the list of interdicted persons, although Act 18 of February 1938 in France has amended the limits of the interdiction” . As you have seen, is still under p: 256 a century since the first law concerning a woman’ s financial independence from her husband ( 1882 in England) was passed in Europe, and, as they say the interdiction was raised from married women. Why did Europe suddenly grant financial independence? Now, how was it that a century ago such an important event happened? Did the human feelings of the men of Europe suddenly come to the boil, and the oppressiveness of their treatment becomes revealed to them? Listen to the reply to this question from Will Durant. In his The Pleasures of Philosophy, he begins an inquiry under the heading ‘‘ Reasons”. There he comments upon the reasons why freedom was granted to the women of Europe, and it is there that we sorrowfully come across a dreadful reality. It is disclosed, that the European woman ought to feel grateful for her freedom and her right of ownership to machines and not to man, and should bow her head to the great cogs of machinery, and not before European man. It was the greed and covetousness of mill owners pushing them to make more profit and to pay less wages which caused them to put up the draft of the Act for the financial independence of women in the British Parliament. 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. Employers must think in terms of profits and dividends, and must not the distracted by the considerations of morals, institutions or states. The p: 257 men who unwittingly conspired to destroy the home were the patriotic manufacturers of nineteenth - century England. “ The first legal step in the emancipation of our grandmothers was the legislation of 1882, by which it was decreed that there after the women of Great Britain should enjoy the unprecedented privilege of keeping the money they earned. It was a highly moral and Christian enactment, put through by the factory- owners in the House of Commons to lure the ladies of England into attending 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( ” . pp. 131 — 132) As you see, it was the capitalists and mill- owners of England who, simply for their material gain, took this step “ in the interest of women” . The Qur’ an and the financial independence of woman: One thousand four hundred years ago, Islam passed this law and ordered: اکْتَسَبْنَ مِمَّا نَصِیبٌ وَلِلنِّسَاءِ ۖ اکْتَسَبُوا مِمَّا نَصِیبٌ لِلرِّجَالِ To the men a share from what they have earned, and to the women a share of what they have earned( . 4: 32) In this verse the Qur’ an considers men to have a right to the fruits of their labor and efforts. In exactly the same way it considers women to have the right to the fruits of their labor and efforts. In another verse the Qur’ an ordained وَالْأَقْرَبُونَ الْوَالِدَانِ تَرَکَ مِمَّا نَصِیبٌ وَلِلنِّسَاءِ وَالْأَقْرَبُونَ الْوَالِدَانِ تَرَکَ مِمَّا نَصِیبٌ لِلرِّجَالِ To the men a share p: 258 of what parents and kinsmen leave, and to the women a share of what parents and kinsmen leave( . 4: 7) It means that for men there is a share in the wealth which their parents or relatives leave behind at death, and for women there is a share in what their parents and kindred leave behind on their death. This verse has established the right of inheritance of women. There is a long history regarding the dispute as to whether woman has a right of inheritance or not, to which we will refer, if God wills, afterwards. The Arabs of the pre- Islamic period did wish to grant the right of inheritance to women, but the Holy Qur’ an firmly established that right. A comparison So the Qur’ an gave financial independence to women thirteen centuries before European women achieved it, with the difference that, first of all, the motive of Islam in giving financial independence to women was nothing but Islam’ s humanitarian aspect and its sense of divine and communal justice. In the case of Islam there were no such initiatives as the avarice of the factory- owners of England, who, in a desire to get more and more profits, got his law passed, and then trumpeted through- out the world that they had given official recognition to female rights and had acknowledged the equality of the rights of men and women. Secondly, Islam gave financial independence to women, but, according to Will Durant did not destroy family ties, and did not ruin the basis of the family. p: 259 It did not set up wives to confront their husbands and daughters to confront their fathers in rebellion and revolt. Islam brought about a great social revolution with these two verses, but quite a peaceful harmless and safe one. Thirdly, all that the western world did, according to Will Durant, was that it relieved woman of the drudgery of her house work and imprisoned her in stores and factories for hard work and toil. In other words, Europe took one set of collars and chains off the body of woman, and stuck on another set, no less heavy than the former ones. But Islam freed woman from the bondage and slavery of man within his house and outside it, on the land, and, by making it compulsory for man to provide for the upkeep for the whole family, freed woman from all sorts of obligations and impositions on her own spending, as also the spending of the other members of the family. In the eyes of Islam, woman, despite her having a right in agreement with the human instinct to earn, save and add to her wealth, is in no manner responsible for procuring the necessities of life. These things should not put a strain upon her, and should not deprive her of her pride, beauty and honor, which are always associated with her peace of mind and tranquility. Anyhow, what can we do? The eyes and ears of some of our writers are too tightly closed for them to p: 260 think over these in disputable historical and philosophical realities. Criticism and reply Ms. Manuchihriyan in her book criticizing the constitutional and Civil law of Iran says on page 37: “ Our Civil Law requires, on the one hand, that a man give maintenance to his wife; that is, he should provide for her dress, food and dwelling. Just as an owner of a horse or mule provides for its food and stabling, so the owner of woman should make her reach this lowest standard of livelihood. On the other hand, it is not clear why in Art. 1110 of the Civil Law it
is particularly mentioned that during the period of ‘ iddah after the death of the husband ( a period during which the widow may not remarry) the woman is not entitled to maintenance. On the occasion if the death of her husband, a woman badly needs sympathy and condolence and naturally she wants that, after the loss of her owner, she should not be put to financial difficulty and distress, You may possible say‘ , You are so fond of freedom and you wish that you should be equal to men in all respects, so why should you desire here that a woman should remain the ration- eater a slave of man, and that man should have kept in view that after his death also her capacity as a ration- eater should continue’ ? We in reply say that in accordance with the same rationale of the slavery of woman on which foundation the structure of this p: 261 Civil Law is raised, it was proper that the law- makers should themselves have taken measures to provide for the maintenance of the woman, and that the law should have been compassionate on this subject” We ask this author from where in the Civil Law of Iran and from where in the law of Islam( , or according to her that philosophy of female slavery) she has discovered that man is the owner of woman, and that the cause of man’ s giving maintenance to woman is that woman is the property of man? What kind of owner is it who is not entitled to ask his slave to give him a cup of water? What kind of owner is it whose slave may do any work for the slave’ s own benefit and not for his owners? What sort of owner is it whose slave may demand, if she wants, wages for the smallest piece of work the slave does for him? What kind of owner is the man who he has no right to force his slave to suckle his baby for nothing, the child she has herself begotten in the house of her owner? Secondly, is everyone who is maintained by some other person his slave? According to Islam, and according to every law, it is the obligation of the father, or the father and mother, to maintain their children. Does it follow that under every law of the world, children are considered as the slaves of their parents? According to p: 262 Islam, the father or mother, if they are destitute, must the maintained by their sons, without the sons being entitled to impose their will upon them. Should we say that Islam considers fathers and mothers the property of their own sons? Thirdly, and most surprising of all, is that she asks: Why, during the period of ‘ iddah after the death of the husband maintenance is not obligatory, whereas the woman at that time is most needful of the money of her husband. It seems that the worthy author lives in the Europe of a century ago. The basis of the maintenance of the woman by the man is not her need. If, according to Islamic laws, a woman, as long as she lives with her husband, has no right of ownership, it would be right that immediately after the death of her husband, the condition of woman is disturbed. But when a law which gives the right of ownership to the woman, and says the women, can keep her own wealth, even though all her expenses are met by her husband, why should it be necessary that after the household is disturbed, the woman should, for a period continue to get maintenance. Maintenance is a gift for a man’ s household, but when the household itself is shaken up, it is not necessary that this right should continue.

Three kinds of maintenance In Islam there are three kinds of maintenance: The first kind is what an owner should spend on what is owned by him. The p: 263 expense incurred by someone who owns animals comes under this heading. The basis of this kind of maintenance is ownership, and the fact of being owned. The second kind is the maintenance which a person spends for his children, when they are under- age or without any resources, or which he spends on his father and mother when they are in need. The basis of this right of maintenance is not ownership and the state of being owned, but these are the rights which the children naturally have from the persons who are responsible for their coming into existence, and the right which a father and a mother have on account of their sharing in the birth of their sons and on account of the sufferings they underwent during the upbringing of their sons. This maintenance depends upon the inability of the person whose maintenance is obligatory. The third kind of maintenance is that which a man spends on his wife. The basis of this maintenance is neither the link of ownership and of being owned, nor the natural right mentioned in connection with the second kind, and neither does it depend on incapacity, inability or poverty. Suppose the wife is a millionaire and has an enormous income, and the husband has fewer resources, still the husband has to arrange for the family expenses and also the personal expenses of the wife. The difference which this kind has with the first and the second kind is that if the man who p: 264 is under the obligation does not perform his function as regards the first and the second kind, and does not give the maintenance, he is a sinner; but non- fulfillment of that function does not take the form of a recoverable debt or of a legal liability. In other words that default creates no legal cause of action. But in the third kind, if someone having that duty ignores it, the wife is entitled to take preceding against him in a court of law, and, if he is proved to be in fault, to recover the maintenance from the man. What is the basis for this kind of maintenance? We shall discuss his thing in the next section. Does modern woman not want a dower or maintenance? point We have pointed out that, according to Islam, it is the function of the husband to provide for the family expenses, including the personal expenses of the wife, and that the wife has no liability in this respect. The wife may have enormous wealth and may possess many times more wealth than the husband does, but still she has no obligation to contribute towards the family expenses. The contribution of the wife towards family expenses in money or in the form of work is optional, and depends upon her own will and inclination. Despite he fact that the expenses of the wife are a part of a family’ s expenses and are the responsibility of the husband, he, in view of Islam is not entitled to take financial benefit from, or to have a p: 265 share in the proceeds of the wife’ s labor and earnings. He cannot exploit her. The maintenance of the wife, in this respect, is like the maintenance of a father and mother which, in certain circumstances, it is the duty of a son to provide, but in lieu of the fulfillment of which the son is not entitled to any right in return for the services he has rendered. An advantage to women in financial matters: Islam has given women an unprecedented advantage in financial and economic matters. On the one hand, it has given her full financial independence and freedom, and has prevented man from having any power on her property and work. It has taken away from man the right of guardianship over the affairs of woman, such as existed in historical times and was customary in Europe up to the beginning of the twentieth century. Over and above that, by freeing her from the responsibility of family expenses, Islam has exempted her from any liabilities or obligations to run after money. When those who worship the west wish to criticize this law, in the name of protecting women, they find no alternative except to have recourse to the invention of a bold lie. They say that the reason behind maintenance is that man considers him the owner of woman and engages her in his service. Just as the owners of animals are obliged to bear their expenses so that they may ride the animals, or so that the animals will carry loads for them, the p: 266 law of maintenance has demanded, for the same purpose, the provision of the lowest, hand to mouth subsistence for woman. If somebody were to take upon himself the task of attacking Islamic law with the criticism that this law has unduly is favored woman and is not fair to man and has treated him as a wageless attendant of woman, he could more plausibly bring forward arguments in favour of his plea and give it an ostensibly more realistic form than the person who attempts to criticize this law in the name, and for the protection of, women. The reality is that Islam does not seek to devise a law in favour of women and against, men, nor in favour of men and against women. Islam is neither a partisan of woman nor of man. In its laws, Islam has kept in view the prosperity of the woman and the man, and the children who are to be brought up under their care, and has, in the long run, kept the prosperity of all human society in view. According to Islam the prosperity of men, women, their children and the whole of human society depends on the condition that the rules and laws of nature, which are conditioned and shaped by the strong and prudent hand of the Creator, should not be blindly acted upon, without any sight into their wisdom. As we have repeatedly mentioned, Islam has always observed the rule that man is a symbol of humility and p: 267 need, and woman a symbol of needlessness. Islam recognizes man as a purchaser and woman as the owner of necessary goods. In the eyes of Islam, when the married couple lives together, it is the man who should consider himself the beneficiary and should bear the family expenses. The man and the woman should not forget that in the matter of love two different roles are assigned to them. The union will be stable, firm and harmonious only when the man and the woman behave within their natural roles. Another reason why the maintenance is obligatory on the husband is that the pain, suffering and loss of energy involved in the birth of the next generation is left by an act of nature to be supported by the woman. Man’ s natural function in this connection is only an act of pleasure and nothing more. It is the woman who is incommoded by menstruation who undergoes the burden of the period of pregnancy and the indispositions peculiar to it; it is she who bears the hardships of childbirth and the resultant dangers; it is she who nurses and takes care of the child. All the above mentioned things drain the physical and nervous strength of the woman, and sap the energy which she could have spent in work and earning money. In the face of these hard facts, it were decreed that man and woman should be equally responsible for contributions to the family budget, and if the law did not come to p: 268 her support, woman would be placed in a pitiable situation. These are the reasons that even among animals who live in pairs the male always stands in support of the female and helps to find food for her during her period of confinement when she gives birth to the offspring. Besides that, man and woman are not created the same as far as their power to perform difficult, economically productive work is concerned. If there is a case of estrangement and the man takes a stand against the woman and says that be will not spend even the least amount of his earnings on her, the woman is never is able to earn a sufficient amount to reach the standard of the earnings of the man. Leaving aside all his above everything else is the fact that woman is in need of more money and wealth than man. Articles of luxury and ornaments are the primary needs of a woman. What a woman spends on articles of luxury, on make- up and self- adornment is equal to the expenses of many men. This inclination towards adornment creates by itself an inclination towards variety and fancy in woman. For a man, simple clothes, as long as they are fit to be worn and are not old and worn out, will do, but for a woman what is the case? For a woman! dress is fit to be worn as long as it is to display some flew charm. 1 often do we with, that a p: 269 dress or some jewelry should have more value for a woman than merely to be worn once! The energy and effort of a woman in earning wealth is less that that or a man, but a woman’ s sagacity to spend wealth is many times more than a man’ s. Besides that, in order for a woman to remain a woman that is, to maintain her beauty, her elegance and ride, a much more comfortable, peaceful, and easy- going life is required, and fewer worries about necessities. If women were obliged like men to be always in search of and looking for resources and running after money, her pride would dwindle, and those wrinkles and knots would appear on her face which economic worries cast even on the face and forehead of man. It has been heard very often that those poor western women who are obliged to struggle for their livelihood in workshops, factories and offices, envy the life of eastern women. It is evident that a woman, who has no peace of mind and does not find time to attend to herself will also not be a source of delight and happiness for her husband The result is that not only is it proper for the woman, but rather it is in the interest of the man and the well- being of the household also, that she should remain exempt from the compulsory struggle to finding the means and resources for living. Man also desires that his home should be a place of p: 270 tranquility, a place for rest fatigue where the worries of the outside world may be forgotten. His wife has the power to make the home a place of repose and tranquility and a place to forget anxieties and worries, and she herself should not be exhausted and worn out by the fatigue caused by the outdoor tasks a man is required to do. How pathetic is the condition of a man who enters his house and finds his spouse more tired and more weary than he himself. Thus the wife’ s comfort, well- being, happiness and peace of mind are of abundant value for the husband also. The secret of a man readily giving money to his wife, the money which he brings home after strenuous labor and hard work, to be spent by her liberally as she likes, is that the husband understands that his spiritual needs are with his wife. He has realized that God has placed in his wife the source of his comfort and the solace of his spirit إِلَیْهَا لِیَسْکُنَ زَوْجَهَا مِنْهَا وَجَعَلَ And made of him his spouse that he might rest in her( . 7: 189) He has understood that the better the arrangements he makes for the requirements, comforts and tranquility of his wife, the better indirectly, he makes his own happiness and the comforts of his own home. He has come to understand that out of the two married people at least one should not be under the strain of struggle and fatigue, so that 
that one may be the source of comfort to the spirit of the other. In this division of work, the one who is more competent to step into the struggle of life is man, and the one who can better comfort and tranquilize the spirits of the other is the woman. Woman is created in need of man in the material and financial aspects of life, and, likewise, man needs woman on the spiritual side. Without dependence upon man, woman cannot defray the expenses of her excessive material requirements which are many times those of man. Due to this, Islam has specified the woman’ s legal spouse as the only centre of her independence. If woman wished to live as she desired but not to depend exclusively on her legal husband, she would have to depend upon other men. This is unfortunately the case. Examples are easily found and the number is on the increase.

The purpose of propaganda against maintenance The women- hunters have understood this point, an one of the reasons for the propaganda against the maintenance of wife by her husband is this very thing. If excessive demands for money by the wife culminate estrangement, the woman can easily fall prey to the huntsman. If you look into the extravagant rationale behind rights that is being inculcated in the minds of women in certain institutes and organizations you will see exactly what I mean. There is not the slightest doubt that the annulment of maintenance is a cause for the increase of promiscuity. How is it possible for p: 272 a married woman to separate the conduct of her life from man, and to manage her affairs according to her own preferences? If you want to know the true position, it is the anxiety also of those men who are tired of the sumptuousness and extravagance of their wives which is a factor helping the movement to annul maintenance. These people desire that, in the name of freedom and equality, and by the endeavors of women themselves to attain these goals, they should take their revenge on women for their luxuriousness and extravagance. In The Pleasures of Philosophy, after he has defined modern marriage in the words‘ , legal marriage, with legalized birth control, and with the right to divorce by mutual consent for childless couples, usually without payment of alimony( ” p. 150, ) Will Durant says“ : Very rapidly the luxurious ladies of the bourgeoisie are bringing down upon all their sex the revenge of the tired male; marriage is changing to a form that will not tolerate the unproductive women who are the ornament and horror of so many expensive homes; the men are inviting their modern wives to earn for themselves the money which they are to spend. For companionate marriage provides that until maternity is in the offing, the wife shall go to work. Here hides the joker by which the liberation of woman shall be made complete: she shall be privileged henceforth to pay her fare from A to Z. The Industrial Revolution is to be carried out to its logical p: 273 and merciless conclusion, woman is to join her husband in the factory; instead of remaining idle in her bower, compelling the man to produce doubly as a balance to her economic sterility, she shall become his honored equal in toil as in reward, in obligations as in rights( ” . ibid, p. 151) Wealth in place of husband The point that the natural functions of a woman in giving birth to children necessitate that in monetary and economical matters she should have something to rely upon is not something which can be denied. In today’ s Europe there are persons who, in support of woman’ s freedom, have gone to the extent of advocating the return of the matriarchal system and banishing the father altogether from the family circle. They believe that with the full economic independence of woman, and her equality to man in all respects, man will, in future, be considered an extra limb, and will be dropped from the family forever. Quite simultaneously the same individuals invite the state to come forward as a substitute of the father. To mothers who would never be able to establish and form a family and perform all the necessary duties single- handed, the state, they say, should make grants of financial assistance, so that they do not need to refuse to become pregnant, and the continuation of society in the next generation may not be interrupted. In other words, the mother of a family who lived on maintenance, and, as those who attack this position put it, has been the property p: 274 of her husband, will henceforth live on the maintenance of the state, and will be the property of the state. The duties and the rights of the father should be transferred to the state. How sincerely we wish that those individuals who, with a pick- axe in their hands, blindly and indiscriminately demolish the equilibrated structure of our sacred homes which has its foundation in the sacred revealed law could think over the consequences and could look ahead of them and see the light ahead of them. In his book Marriage and Morals, Bertrand Russell discusses certain cultural interferences and the welfare works of the state. Concerning children he says: “ There is another powerful force which is working in the direction of the elimination of the father, and this in the desire of women for economic independence. The women who have been most politically vocal hitherto have been unmarried women, but this state of affairs is likely to be temporary. The wrongs of married women are at the moment much more serious than those of unmarried women... There are two different ways in which married women might acquire economic independence. One is that of remaining employed in the kind of work that they were engaged upon before marriage. This involves giving their children over to the care of others, and would lead to a very great extension of creches and nursery schools, the logical consequence of which would be the elimination of the mother as well as the father from all importance in the p: 275 child’ s psychology. The other method would be that women with young children should receive a wage from the State on condition of devoting themselves to the care of their children. This method would, of course, be not alone adequate, and would need to be supplemented by provisions enabling women to return to ordinary work when their children ceased to be quite young. But it would have the advantage of enabling women to care for their children themselves without degrading dependence upon an individual man. “ Assuming such a law to have been passed, its effects upon family morals will depend upon how it has been drafted. The law may be so drafted that a woman receives no payment if her child is illegitimate; or again it might be decreed that if she can be proved even once guilty of adultery, the payment should be made to her husband instead of her. If such is the law, it will become the duty of the local police to visit every married woman and make an inquisition into her moral status. The effect might be most elevating, but I doubt whether those who were being elevated would altogether enjoy it, I think there would presently come to be a demand that police interference should cease, with the corollary that even the mothers of illegitimate children should receive the allowance. If that were done, the economic power of the father in the wage- earning class would be completely at an end, and the family would probably cease p: 276 after a time to be bi- parental, the father being of no more importance than among the cats and dogs. “ I think that civilization, at any rate as it has hitherto existed, tends greatly to diminish women’ s maternal feelings…. It is probable that a high civilization will not in future be possible to maintain unless women are paid such sums for the production of children as to make them feel it worth while as a money- making career. If that were done it would, of course, be unnecessary that all women, or even a majority, should adopt this profession. It would be one profession among many others, and would have to be undertaken with professional thoroughness. These, however, are speculations. The only point in them that seems fairly certain is that feminism in its later developments is likely to have a profound influence in breaking up the patriarchal family, which represents man’ s triumph over women in prehistoric times. The substitution of the State for the father, so far as it has yet gone in the West, is in the main a great advance” . According to these supporters of the materiel independence of women, the annulment of maintenance would, according to the above statements, bring about the following results. The rejection and banishment of the father from the family, or at least the father’ s diminishing importance, and a return to the age of the matriarchy, the State taking the place of the father, together with enfeebled maternal feelings, and a situation in which mothers, p: 277 instead of having the attachment of love, will be reduced to the position of persons having a certain occupation and duty and having a certain job as a source of their earnings. It is obvious that the consequence of all this is the complete ruin of the family, which will undoubtedly be succeeded by the ruin of humanity. Everything shall be put right, and only one thing will be missing, and that will be the prosperity, the pleasure and the enjoyment of those intellectual delights peculiar to the affection, of the home. Anyhow, my contention is that even the supporters of the independence and complete liberty of woman, and the upholders of the total banishment of the father from the family, consider that the natural function of woman in giving birth to children requires some money or some assistance, and even, it may happen, wages and rent, but they consider it the duty of the State to give that right, as opposed to the father whose natural duty requires no fee. In the International Labor Laws the minimum wages granted to a workman include the necessities of life for his wife and children. This means that the International Labor Laws officially recognize the right of maintenance for the wife and children. Is the Declaration of Human Rights an insult to woman? In the Universal Declaration of Human Rights, Article 23, clause 3, it is written“ : Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity…” In Article 25, p: 278 clause 1, it says“ : Everyone has the right to a standard of living adequate for the health and well being of himself and of his family, including food, clothing, and housing and medical care and necessary social services,……. In the above two articles of the Declaration it has indirectly been confirmed that every man who establishes a family should bear the expenses and the cost of maintenance of his wife and children. The money spent on them is to be reckoned as the necessary expenses of that man. In the Declaration, despite explicitly mention that men and women have equal rights, the fact of the husband’ s giving maintenance to the wife has not been considered incompatible with the equality of rights. Therefore, those persons who every now and then invoke the authority of the Declaration of Human Rights and its approval in the two Houses of the Iranian Parliament should consider maintenance as a settled question. Would the worshippers of the west, who call everything which has an Islamic color reactionary and outdated, allow themselves to be disrespectful in the sacred presence of the Declaration of Human Rights as well, and continue to think of maintenance as bearing the traces of the ownership of man, and the slavery of woman? What is more, in its Article 25, the Declaration says“ : Every body has the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control” . Here, not only does it treat p: 279 the lots of the husband as a loss in the means of livelihood for a woman, but it has included widows in the same rank as the unemployed, the sick and those physical disabilities. Is it not a grave insult to women? If in any of the books or any legal work of the east an expression like this had been found, the wailings of the objectors would have reached the skies, as we ourselves witnessed in certain cases in respect of the laws of Iran. Nevertheless a reasonable man, who is not biased and prejudiced, and has his eyes on all the sides of a question, will see that neither the law of creation, which has made man one of the means of a woman’ s livelihood, nor the Declaration of Human Rights, which has included widowhood as a loss of the means of sustenance, nor finally the law of Islam, which has
considered woman as entitled to maintenance has insulted her. The fact that a woman is created in need of man, and that the husband is considered to be the source of dependence of the wife is only one aspect of the problem. The law of creation created man and woman in need of each other with a view to fitting man and woman more firmly together, and making the home, which is the basis of the real happiness of man, stronger and more secure. If, in monetary matters it has made man the source of dependence of woman, p: 280 in spiritual tranquility it has made woman the source of dependence for man. These two different requirements make them more close and united to each other.

 

 

Part Nine: The Question of Inheritance
point 
The old world either gave absolutely no inheritance to women or, when it was given, the woman was treated as a minor, which meant that she was not given independence and the status of a person having rights. Under the old laws of the world, if inheritance was occasionally given to daughters, it was never given to the daughter’ s children, while a son could inherit himself, and his children could grow up as the successor to their father’ s property as well. In some other laws of the world which gave an equal inheritance to women and men alike but not in the shape of a specified share, it was what the Qur’ an mentions as مفروضاً نصیباً ( i. e. a fixed share to which she was entitled, ) but it took this form: a person was entitled, if he so liked, to make a will in favour of his daughter as well. The history of women’ s inheritance is long. Scholars and learned persons have extensively examined it, and have left behind a vast body of investigations and writings on this subject which can be studied. I do not think it necessary to quote from their writings and their observations. The summary of their writings is as we have mentioned above. The cause of woman’ s being deprived of inheritance The cause of a woman’ s being deprived of inheritance was to prevent the transfer of family p: 281 property to another family. According to the old idea, the role of the mother in the birth of a child was considered to be insignificant. Mothers were considered were considered as mere containers in which the man’ s sperm developed, and out of which a child came into existence. For that reason they believed that the children of someone’ s son were the issue of a man, and thus they were a part and parcel of his family. On the other hand, the children of his daughters were not his children, but the children of the husband of the daughter, and they belonged to the family of the husband of the daughter. Consequently, if a daughter inherited, and afterwards her children succeeded her, that. would cause situation where the wealth of one family would pass on to a different family. In the book, Irth dar huquq- e madani- e Iran ( Inheritance in the Civil Laws of Iran) written by the late Dr. Musa ‘ Amid, on page 8, after his remark that ‘ in ancient times it was religion which laid the foundations for the formation of families and not natural ties,’ he says: “ The religious spokesmanship of the family ( under the patriarchal system) was with the grandfather of the family, and after him, the religious rites and rituals of the family were performed only by the male children, generation after generation. The ancients considered that the male children were the only source of continuation of their lineage. The father of the family, life- giver to his p: 282 son as he was, also transferred his religious beliefs and the religious rituals, the right to keep the Fire alive, and the right to recite special prayers also[ . 1] As is mentioned in the Hindu Vedas and in the laws of Greece and Rome, the power of generation is confined to men, and the result of this antiquated belief was that the family regions were the special concern of men. Women had no business and concern with religion except through their fathers and husbands….. and because they had no hand in religious rituals, they were naturally deprived of all family privileges. Afterwards, when with the improvement of the economic situation an occasion for inheritance arose, women were deprived of that right” . There were other reasons also for woman’ s being deprived of inheritance. One of them was their weakness in combat. In societies where preferences and prerogatives were based on heroism and valor and one war- faring person was preferred to a hundred thousand non- war like persons, woman was naturally deprived of inheritance because of her weakness in the performance of acts of defense and bravery. Arabs of the pre- Islamic age were against were against woman’ s receiving inheritance for this very reason, and when there was a male member of a family however distant in the ranks of inheritance he may have been, they never gave inheritance to a woman. So, when the verse of inheritance was revealed and it distinctly stated: وَالْأَقْرَبُونَ الْوَالِدَانِ تَرَکَ مِمَّا نَصِیبٌ وَلِلنِّسَاءِ وَالْأَقْرَبُونَ الْوَالِدَانِ تَرَکَ مِمَّا نَصِیبٌ لِلرِّجَالِ p: 283 مَفْرُوضًا نَصِیبًا ۚ کَثُرَ أَوْ مِنْهُ قَلَّ مِمَّا To the men a share of what parents and kinsmen leave, and to the women a share of what parents and kinsmen leave, whether it be little or much, a share apportioned( . 4: 7) It was rather a shock for the Arabs. Incidentally in those days the brother of Hasan ibn Thabit, the well- known poet of the Arabs, died and left behind him a wife, and a few daughters. The sons of his uncle seized all his property, and spared nothing for his wife and daughters. The wife of the dead man brought a complaint against them before the Holy Prophet. The Prophet called them before him. They submitted that woman is not in a position to arm her and fight against an enemy“ . It is we who have to take the sword in our hands and defend ourselves and these women” . So wealth should also belong to man. Nevertheless, the Holy Prophet then recited to them the commandment of God. Inheritance of an adopted son: In pre- Islamic days, the Arabs sometimes adopted someone their son, and, as a result, that adopted son was considered to be a successor when the man died, like a real son. The custom of adoption existed in other communities among which were ancient Iran and Rome. According to this custom, the adopted son, because he was exactly like a son, was entitled to all the privileges to which the real daughters of the deceased were not entitled. One of these privileges was that the p: 284 adopted son was to inherit from the deceased. There was another similar privilege and consequence which was that it was considered forbidden to marry the woman to whom the adopted son had been married. The Qur’ an disposed of this custom also. Inheritance by a confederation: The Arabs had another custom regarding inheritance which was also abolished by the Holy Qur’ an. That custom was of ‘ confederation’. This meant that two strangers would enter into a pact that the blood of one was the blood of the other, and attack on one was the attack on the other, and each one was entitled to inherit from the other. According to this pact, the two non- kindred persons defended each other from attacks during their lifetime, and whoever died earlier left his property to the other. Woman as a part of the share of inheritance: Arabs sometimes counted the wife of the deceased as part of his property and holdings and took possession of her as a share in the inheritance. If a man had a son by some other wife, that son could, in token of his possession, threw a cloth on the face of that woman and count her as a part or his share. It depended upon his inclination whether he entered into wedlock with her or whether he gave her in wedlock to another person and received her dower for himself. This custom was not confined to Arabs only, and the Qur’ an abolished it. In old Hindu, Japanese, Roman, Greek and Iranian laws, very many unjust discriminations are to be found. If we p: 285 were to quote the observations of those persons who have made a thorough study of the subject, we would require a great deal of space. Woman’ s inheritance in the Sassanid period in Iran: The late Sa’ id Nafisi writes on p 42 of his book Tarikh- e ijtima’ i- e Iran az zaman- e sasaniyan ta inqirad- e Umawiyan ( The Social History of Iran from the Sassanid Period till the Overthrow of the Umayyids): “ In connection with the establishment of a family, another notable point in the Sassanid civilization was that when a son reached the age of puberty, his father would give one of his several wives to him in marriage. Another mentionable fact is that in Sassanid civilization, woman had no individuality and thus no rights, and a father and a husband had immense authority to keep a hold over them. When a girl reached the age of fifteen, and reached full maturity, the father, or the head of the family, was required to give her in marriage, but the marriageable age for a son was considered to be twenty years. In the matter of marriage the consent of the father was a necessary condition. The girl who went over to her husband without such consent did not inherit from her father or guardian, and in the selection of a husband for herself she was not considered to have any right. However, if after reaching puberty, her father neglected to give her in marriage, she had a right to have recourse to an illegal marriage, and in these circumstances she was not entitled p: 286 to inherit from her father. “ The number of women that a man could keep had no limit. From Greek document, it transpires that a man sometimes had several hundred women with him in his house. The principle of marriage in the Samanian period, as recorded in the religious books of the Zoroastrians, is very complex and confusing, but there were five customary kinds of marriage. 1. A wife who was married with the consent of her parents, and who gave birth to children who were hers in this world and hereafter, was called “ padishah- e zan( ” queen of the wives). 2. A wife who was the only child of her father and mother was called “ ug zan( ” unique wife). The first child she gave birth to was given over to her parents so that the child could fill the place of his or her mother who had gone from the house and had married. Thereafter she too was spoken of as “ padishah- e zan”. 3. If a man died in his youth without marrying, the members of his family used to give a dower to a woman from another family, and take her to the house of a man not of their family, and that woman was called “ sidhar zan( ” adopted wife). Any child that she gave birth to was to be considered in the next world as one half or the young man who had died and the other half of the man still alive. 4. A widow who married for the second p: 287 time was called “ chigar zan( ” servant wife). If she had no issue by her first husband she was given the status of “ sidhar zan”. 5. A woman who went to a husband without the consent of her father and mother was considered to be of the lowest status, and she was called “ khud saray- e zan( ” willful wife, ) and did not inherit from her father or mother. Nevertheless, when her son reached the age of puberty and accepted her as his “ ug zan”, her status changed” . The share of women in inheritance according to Islam: In Islamic laws, none of the incongruities of the past are found in the question of inheritance. The matter regarding which those who claim equality of rights raise objections is that the share of a woman in inheritance according to Islam is half the share of a man. In Islam, a son inherits twice as much as a daughter, a brother twice as much as a sister, and a husband twice as much as a wife. It is only in the case of the father and mother that, if the deceased has children and his father and mother are also alive, both the father and the mother will inherit one sixth of the property of the deceased. The fact that a woman inherits one half of the share of a man is due to a special state of affairs. Because a woman is entitled to a dower and maintenance, and because she is incapable of taking
an equal part in the defense of the community, the fact p: 288 that her share is one half of her brother’ s is, to some extent, the result of a law of recompense. In other words, the special inheritance position of woman is founded upon the special place she occupies as regards dower and maintenance and so forth. In accordance with the arguments which we have put forward in the previous chapters, Islam has acknowledged dower and maintenance as a necessary and effective factor in strengthening the mutual relationship between husband and wife, safe guarding the tranquility of the household, and establishing unity between husband and wife. In the eyes of Islam, the abolishing of dower and maintenance, but especially maintenance, would cause a shaking in the foundations of the household and the wife being drawn towards promiscuity. As Islam considers dower and maintenance to be obligatory, the wife is automatically exempted from providing for the family budget, and that responsibility has been laid upon the husband. Islam seeks that this responsibility should be recompensed by inheritance, and so twice as much of the share or inheritance has been allocated to man as to woman. In short, it is dower and maintenance which has decreased the woman’ s share in inheritance.
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[1]: This describes the situation in Ancient Iran (Tr. )

An objection by the worshippers of the west: When a group of worshippers of the west give vent to their utterances concerning this problem, and make an issue of a woman’ s share being less than a man’ s in their propaganda against Islam, they start on the subject of dower and maintenance. They say“ : Why should we proceed in a circuitous and a p: 289 round- about way? Why should we not give equal shares to man and to woman, so that we should not be obliged to compensate the deficit by way of dower and maintenance” ? Firstly, these busybodies have mistaken the cause for the effect and vice versa. They consider that dower and maintenance is the effect of the situation that holds as regards a woman’ s share in inheritance, whereas in fact, that special situation is the effect of dower and maintenance. Secondly, they think that what really matters is the financial and economic aspect of the question. Obviously, if only the financial and economic aspects were in view, there would have been no justification for dower and maintenance or for the share in inheritance being unequal. As we pointed out in the preceding article, Islam has kept in view many aspects of the question some of which are based on nature and some psychological. On the one side there are the excessive requirements and problems of woman in connection with childbirth, while man is free from all this. On the other side there is her lesser ability to produce and earn wealth. Thirdly, there is the fact that her consumption of wealth is more than of man. Moreover, the special psychological and intellectual considerations regarding men and women, in other words, the characteristic psychology of men and women and the fact that a man should always be there as the person responsible for the expenses of women, and, lastly, the subtle psychological and p: 290 social considerations which are the source of strength in family ties— all these aspects have been kept in view by Islam. It has considered dower and maintenance positively necessary. These necessary and unavoidable matters are an indirect cause of the burden on the man’ s expenses. This is the reason that Islam has ordained that in recompense for the responsibilities that have been laid upon man’ s shoulders; he should have twice as much share in inheritance as a woman. Any how, the financial and economic aspect is not the only one and it is not the only goal aimed at in Islamic law, so the question proposed“ : Why, in one place, is the share of woman cut to half, and in another place recompensed? does not arise. The objection of atheists at the beginning of Islam about inheritance: We pointed out that, in the view of Islam, dower and maintenance are the cause, and the situation regarding a woman’ s share in inheritance is the effect. It is not only recently that questions regarding this part of the law have been raised, for it has been under discussion from the early days of Islam. There was a man called Ibn Abi’ l-‘ Awja’, who lived in the second century of the Hejra, and had no belief in God or religion. This man took advantage of the freedom of that period and propagated his atheistic beliefs everywhere. Not only that, but he sometimes went to the Holy Mosque ( Masjidu’ l- Haram) in Mecca, or the Holy Mosque of the Prophet ( Masjidu n- Nabi) in Medina, and there he debated the subjects p: 291 of the Unity of God, life after death, and other cardinal principles of Islam. One of his objections against Islam was the very same one about inheritance. He would say: سهمین. ویأخذ سهماً تأخُذ الضَّعیفة المِسکینة المرأة بالُ ما “ Why should a poor woman, who is weaker than man, gets only one share, while a man, who is stronger, gets two? This is contrary to justice” . Imam Ja’ far as- Sadiq ( a. s) . replied that it was because Islam had exempted woman from armed combat, and moreover that dower and maintenance had been imposed upon man for her benefit. What is more, in certain cases of doubt, in which blood relatives had to pay ransom money, woman has been exempted from sharing with others in the payment. These are the causes why the share of woman is lees than the share of man. Imam as- Sadiq ( a. s) . said distinctly that the special situation of woman in inheritance is the effect of dower and maintenance is the effect of dower and maintenance and exemption from armed combat and paying ransom money. Such questions were put to all the Imams of our faith, and all of them replied in the same way.

 

 

 

 

 

 

Part Ten: Right of Divorce point In no age has the danger of the breaking- up of the family and the evil side- effects that arise from it been the object of so much attention as in ours, and in no age were human beings involved in this danger and in the evil consequences springing from it as they are in this age. p: 292 Law- makers, jurists, psychologist— , all of them try, with all the means in their control, to further strengthen, stabilize and render indestructible the structure of marriage, but all effort have failed and have instead aggravated the disease. Statistics show that year after year the number of divorces increases, and that there is imminent danger of the breaking up of many other homes. Usually, whenever some disease attracts attention, and material and intellectual efforts are expended to combat and defeat it, the number of cases decreases as a result and very often the disease is eradicated; but in the case of divorce it is just the opposite. The increase of divorce in modern life point In the past little thought was given to divorce, its evil effects, the causes of its occurrence and increase, and the ways of preventing its incidence, while at the same time there were fewer divorces, fewer broken homes. Certainly the difference between the past and the present is that now the causes of divorce are on the increase. Social life has assumed a form in which the causes of separation, disunion and the breaking of the ties of home life have been multiplied, and that is the reason why the efforts of the experts and the well- intentioned have not as yet been at all successful. Unfortunately, in the future it is likely to become more serious. On February 13th 1967, Newsweek published an article under the title“ : The Divorced Woman - American Style( ” later translated into Persian and printed in Zan- e ruz ( no. 105, ) there p: 293 it was written“ : Getting in and out of divorce is almost like getting in and out of taxis” . It also writes that American people have an expression“ : The worst reconciliation is preferable to the best divorce” . This expression was first coined by the Spanish writer Cervantes in 1600. Another saying, this time from 1960 and contrary to first one says“ : Love is lovelier the second time around”, and comes from the pen of one Sammy Kahn, songwriter. From the text of the article it appears that the second saying is now being realized in America, for it writes“ : The allure of the marriage- go- round has grown so potent that it is attracting not only teen- agers and young marrieds but more and more of their mothers. The U. S divorce barometer is not on the rise; in fact, it has hovered around the 400, 000 a- year level in World War II... Nearly 40 per cent of all ruptured marriages today have lasted ten years or more and 13 per cent have survived more than twenty years. The median age of the U. S’ s two million divorcees is now 45. Furthermore, belying the myth that progeny preserves marriages, some 60 per cent ( vs. 42 per cent in 1948) of todays divorced women have children under 18 at the time of their breakup” . The article continues“ : Yet for all her privilege and plenty the divorcee — mature or not — is hardly gay. Her tristesse is revealed in the incidence of divorced women seeking psychoanalysis, in p: 294 their rate of alcoholism( , one in four) and suicide ( three times that of married women…. ) In short, once outside the courtroom, many a newly divorced woman discovers that things are not what she deemed…. The partnered world has yet to form a cohesive set of attitudes towards the female ex- partner. She may be respected, admired, even envied — but she does not fit snugly into other people’ s private lives” . The magazine then goes on to ask whether the cause of speedy divorces is disharmony and the absence of sexual compatibility between husband and wife. It writes“ : To judge by court records, money, sex and incompatibility are still the prime reasons for divorce among all ages and classes. What underlies the failure of so many marriages is not a new form of friction — but a new unwillingness to tolerate the old frictions. In the age of the pill, the sexual revolution and the feminine mystique, the notion that happiness takes precedence over family solidarity has clearly captured the female imagination” . “ A wife today,’ says Unitarian minister Rudolph W. Nemser, of suburban Washington, D. C‘ , . is less willing to tolerate incompatibility without questioning her situation. The husband, by contrast, is more likely to accept the fact of a bad marriage and will persevere with it’ . According to Psychiatrist Wahl, women are becoming more demanding of sexual gratification and more intolerant of sexual incompatibility” Divorce in Iran The rise in the divorce- rate is not confined to America. It is a universal disease of the times. Wherever western p: 295 manners and customs have influenced the lives of people more, the number of divorces has also gone up. If, for example we consider the case of our own Iran, cases of divorce are found more in cities than in the country. In Tehran, where western manners and habits are more wide- spread, divorce cases occur in greater number than in other cities. In issue no. 11512 of the daily newspaper Itila‘ at, a short statistical record of the marriages and divorce in Iran was made. It was mentioned that “ more than a quarter of the number of divorces recorded are entirely connected with the area around Tehran, that is, twenty seven per cent of the divorces recorded occurred in Tehran, in spite of the population of Tehran being ten per cent of the total population of the country. On the whole the percentage of divorces in Tehran is higher than the percentage of marriages. Marriages in Tehran account for fifteen per cent of all the marriages of the whole country” .

The environment in divorce- infected America Let us leave aside now the fact that talk of an increase in divorce first arose in America, and as it was said in Newsweek, an American woman prefers her own enjoyment and pleasure to the well- being and safety of her own home, and let us precede a step further and see why the American woman has become like this. Certainly it is not related to the nature of American woman; it must have some social cause. It is surely the social p: 296 environment in America that has created this mentality among American women. Our worshippers of the west try to direct and push the women of Iran onto the tracks along which American women have passed. If their wish is fulfilled, there can be no doubt that the Iranian woman and Iranian family- life will meet the same fate as the American woman, and the Iranian home will become like the American home. In issue no. 66 ( 4. 5. 1344. SH, ) the weekly Bamshad wrote“ : See how far matters have gone! The voice of French people is raised in protest‘ . The Americans Have Perpetrated Another Outrage’ . This heading is from an article in the French newspapers France- Soir which says that in more than two hundred restaurants and cabarets in the State of California female attendants work topless. In that article it is written that a special skin- tight costume like a bathing- costume, which does not cover the breasts, has been officially recognized as a working dress in San Francisco and Los Angeles. In New York city a considerable number of cinemas show only those films which are based upon sex, and the naked pictures of women at their doors confront the eyes. These films are called ‘ Wife- Swapping’, The Vice- Girls‘ ’, Revealing Panties’ and so on. In the shop- fronts and book- stalls there may be very few books on the front of which there is no picture of a naked woman. Even the classics are not exempted from this rule. In the midst of these books one can find a large p: 297 number of books with titles such as“ : The Sexual Behavior of American Husbands”, The Sexual Behavior of Western Husbands“ ”, The Sexual Behavior of Youths under Twenty Years of Age“ ”, New Methods in Sexual Behavior on the Basis of the Latest Surveys”. “ The writer of the article in France- Soir, surprised and thoughtful, asks himself at this stage‘ : To what extent does America want to go’ . At this point Bamshad writes: The truth is that it will go anywhere it wants to……. only my heart aches for these people of my country who think that they have found an ideal standard to follow, and are completely confused in this path” . So it is clear that if an American woman has become playful and prefers her own pleasure to faithfulness to her husband and her home, she is not very much to blame. It is the social environment which has struck the destructive blow at the roots of the household. It is strange that the leaders of our times are continuously giving encouragement to the social causes of divorce and the breaking up of the family. Amongst themselves, they try to excel each other in their attempts in this direction, and then raise cries of woe and wonder why divorce is so frequent. With one hand, these people add to the causes of divorce, and with the other, they want to repress it by force of law. It is like asking for the impossible. Assumptions Now let us begin discussing the subject at its roots. p: 298 Firstly we should see whether, in principle, divorce is a good thing or a bad thing. Should recourse to divorce be entirely unrestricted? If divorce is a good thing then every circumstance that increases the already increased occurrence of divorce is quite all right. Or maybe the way to divorce should be completely barred, and union by marriage should be forcibly kept intact for ever, and every circumstance and innovation which causes slackness in the sacred union of marriage should be strictly dealt with. Or there is the third course, the proper course to be adopted, which is as follows. The law should not entirely bar the way to divorce to man and woman, but rather it should leave the way open to it in those cases in which it is deemed necessary and unavoidable. When the law does not completely ban it, society should simultaneously take adequate steps to bring about such conditions that the causes of dissension between husband and wife should not occur. Society should take a firm stand against the causes which are the source of the disunion and separation of husband and wife, and the loneliness of children. If society itself furnishes the causes of divorce, no legal prohibitions can be fruitful. If it is considered proper that the law should keep the door of divorce open, then under what conditions and in what way, should it be left open? Should it remain open only for the husband, or only for the wife or else for both p: 299 of them? In the case of the latter alternative, should the door be kept open for both husband and wife in the same way? Should the law allow the husband and wife to step out of marriage both in the same manner, or is it preferable that for each one, the husband and the wife there should be different procedures for dissolving this tie. In all there are five angles from which the problem of divorce can be discussed: 1 The unimportance of divorce, and the lifting of all moral and legal checks and hindrances for the control of divorce. 2. Those people support this view who consider marriage only as a source of sexual pleasure, and do not imagine it to have an aspect of inviolability, and do not consider the integrity of the family to be an asset or society. They think, in accordance with the saying ‘ the second love is more enjoyable’, that the sooner that a new, different marriage is entered upon, the greater a source of sexual pleasure for woman and man it will be. In this point of view both the social value of peace of the home has been ignored, and also the joy, purity, cordiality and happiness which is found in a continuous married life; and the occurrence and recognition of the unity of two spirits as if has been disregarded. This point of view is the most superficial and the most frivolous. 2. Marriage is a sacred pact. It is a union
of heads and souls, and must always remain intact and secure. The word “ divorce” should be dropped from the vocabulary of human society. A wife and a husband, who many each other should know that nothing except death can separate them from each other. This view is the one the Catholic Church has maintained for centuries and is not prepared to relinquish at any cost. The supporters of this view are on the decrease in the world. Except in Catholic Italy and Spain, this law is not enacted these days. Time and again we read in newspapers how the wailings of Italian men and women are raised against this law; they attempt to get the law of divorce officially approved so that many unsuccessful marriages be prevented in their troubled country. Some time back, in one of the current daily newspapers, the translation of an article from the Daily Express was published under the headline “ Marriage in Italy- Slavery of women”, and I went through it. In this article it was said that at present in Italy because there is no divorce, many people enter into illicit sexual relations. According to the article “ at present more than five million Italians believe that their lives are nothing, but sheer sin and illicit relationships”. In the same newspaper it was quoted from the French Le Figaro that the non- availability of divorce is the cause of great distress among the Italian people. There are many persons who have given up Italian Citizenship for this very p: 301 reason. One Italian institute at last sought the opinion of Italian women as to whether the introduction of the provisions of divorce was against the principles of religion or not. Ninety- seven per cent of the women gave their replies in the negative. The Church persists in its view, and argues all the more in support of the sanctity and inviolability of the marriage pact. The sanctity of marriage, a necessity for its inviolability and indestructibility is of course acceptable, provided that the relationship of the husband and the wife can be securely maintained in practice; but there arise occasions when compatibility between the husband and the wife is impossible. On such occasions it is not feasible to keep them tied up together by force of law and call it the union of husband and wife. The discarding of the opinion of the Church is certain. It is not unlikely that the Church may revise its belief, so it is not necessary to scrutinize and discuss further the viewpoint of the Church. 3. Marriage may be dissolved and terminated by the husband. As for wife, it is not dissoluble at her discretion it all. May be in former days this view was entertained, but at present I do not think that any supporters will be found for this view. At any rate, it too requires no further discussion and criticism. 4. Marriage is sacred and the peace of the family to be respected, but recourse to divorce on special conditions for both husband p: 302 and wife should be possible. Moreover, the way to step out of this blind alley should be the same for both. Those who support the identicalness of the rights of man and woman in family affairs, and who misrepresent this as equality of rights also support this view. In the opinion of this group all those conditions, requisites and limits that apply to the wife should also apply to the husband, and the very same way that the man has to get out of this blind alley should be the right of the woman as well. If there is any difference, there will be cruelty, discrimination and injustice. 5. Marriage is sacred and the peace of the family to be respected, and divorce an unpalatable and detestable thing. Society is responsible for removing the causes and incentives to divorce, but at the same time the law should not bar the way of divorce for incompatible marriages. The way to get out of the bond of marriage should be kept open for the husband as well as for the wife. The door by which the husband is to come out of this situation is different from that which the wife is to use. One of the matters in which a man and a woman have different right is divorce. This is the view which Islam has proposed, and Islamic countries, though half heartedly, do act upon it. 
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Divorce 2
point Divorce in our age is a great world problem. Everyone moans and complains. Those people under p: 303 whose laws divorce is totally prohibited complain that they do not have the remedy of divorce for those unsuccessful marriages which are bound to take place. On the other hand, the cries those who have kept the way to divorce open equally for man and woman rise to the heavens, complaining about the increase in divorces and the instability of the family structure with all its associated ills and uncalled for side- effects. Moreover, those who have given this right only to man complain on two accounts. Firstly, about the unmanly divorces of certain men who, having lived together with their wives as husbands, suddenly develop a fancy for a new wife, and the first wife, who spent her vitality, youth, energy and health on their home and never imagined that her cozy abode would one day be seized from her, is driven away from her repose, forsaken and utterly dejected, by only one visit to the office of the registrar of divorces. The other is the unmanly refusal of certain men to divorce their wives when there remains no hope of a harmonious and united life. It can happen that due to some special reasons, the differences between a husband and wife reach a stage where there is no hope of their finding a settlement. All attempts at reconciliation prove fruitless: a great dislike exists between the husband and wife; they live separately, and each of them has practically nothing to do with the other. In such circumstances, any reasonable p: 304 person would be convinced that the only thing proper for them is that the relation which has to all intents and purposes been cut should also legally be served, and that each of them may be allowed to make the selection of some other partner. Nevertheless some men, if only to torment the other party and depriving her of the benefit of enjoying a married life, keep their unfortunate wife in a state of suspense for nothing ( in the words of the Qur’ an( ) ka’ l- mu ‘ allaqahکالمعلقة ) like someone hanging on). As this kind of person knows nothing about Islam and Muslims except the name, and then they do these things in the name of Islam and by leaning on the laws of Islam, a doubt is created in some people who are not conversant with the depth and the real spirit of Islamic teachings as to whether Islam really advocates that the business of divorce should be like this. With a voice of complaint, these people say: Has Islam really allowed men, sometimes by giving divorce and sometimes by withholding divorce, to persecute women in any way they like? Those people who act in the above mentioned way are completely satisfied that they are correct in the way they take advantage of their religious and legal rights. Those who raise objections say: Is that not cruelty? If this is not cruelty, what is cruelty? Do you not say that Islam is against injustice in any form and in any shape, and that p: 305 Islamic laws are based upon justice and truth? If these acts are cruel and unjust, and Islamic laws are based up on truth and justice, tell us, so that we may see what provision is made by Islam to check these cases of injustice. There is no denying that these acts are cruel. We will point out afterwards that Islam has provided correctives for these practices and has not left them to themselves. Nevertheless, there is one other point which should not be lost sight of, and that is to think over what methods should be adopted to check these cruelties and injustices. Is the only thing which causes cruelties of this description to be committed the divorce law, and will only amendment of the divorce law amend these things? Or should the root cause of these cruelties be looked for elsewhere, because changes in the law alone cannot stop these things. The difference between the view of Islam and some other views about solving social problems is that some people, holding views other than that of Islam, imagine that all problems can be solved by passing and altering laws. Islam, on the other hand, clearly makes the point that although the law can certainly be effective as far as the everyday affair of the people and matters revolving around contracts, etc. are concerned, in cases where the problem is characterized by feelings of affections and love and pertains to individual likes and dislikes, in short, in cases with an emotional aspect, p: 306 then the law alone cannot be effective. Other causes and factors should be investigated, and other provisions brought into use to obtain the desired goals. We shall prove that Islam has made use of the law in places where it can be effective, and has not been neglected in this direction. Dishonourable divorces Firstly, we shall discuss the foremost problem of our times, namely dishonorable divorces. Islam is strongly against divorce and wants divorce to be avoided as far a possible. Islam has provided his remedy only for occasions in which there is no alternative but separation. Islam considers as enemies of God those men who marry one woman after the other and divorce them in quick succession and whom it calls mutallaq ( lit: a divorcer). In the book al- Kafi [ 1] it is narrated: The Prophet went to a man and enquired“ : What did you do about your wife” ? He said“ : I divorced her” . The Prophet asked“ , Did you see anything objectionable in her” . He replied“ , No, I did not see anything objectionable in her” . The matter stopped here, and that man married again. The Prophet asked him“ , Did you marry another wife” ? He said“ , Yes” . After some time the Prophet again went to that man and asked him“ ; What did you do about your wife” ? He said“ : I divorced her” . The Prophet asked him“ , Did you see anything evil in her” . He said“ : I did not see anything evil in her either” . The matter closed again here, and that man married for the third time. The Prophet asked him“ : Have you taken another wife” ? He p: 307 said“ : Yes, O’ Messenger of Allah” ! A considerable time passed and the Holy Prophet went to him and asked“ : What did you do about the wife you married” ? He said“ : I divorced her also” . The Prophet asked“ : Did you see anything evil in her” ? He replied“ : No, I did not see anything evil in her either” . The Prophet said “ Allah considers as His enemy and damns the man who relishes changing wives one after the other, and the woman who delights in changing husbands one after the other” . The Prophet was informed that Abu Ayyub al- Ansari was determined to divorce Umm Ayyub, his wife. The Prophet personally knew Umm Ayyub, and knew also that the divorce of Abu Ayyub was not grounded in an genuine cause. He said: لَحُوبُ أیُّوب أُم طلاق إن “ Verily, the divorce of Umm Ayyub is a great sin” . The Prophet also said“ : Jibra’ il ( Gabriel) so much commended the cause of the woman, and so counseled me as to give me the impression that except in the clear case of adultery the wife does not deserve to be divorced”. Imam ( Ja‘ far) as- Sadiq quoted the Holy Prophet as saying“ : To God no house is dearer than the house where there is the union of marriage, and no house exists which deserves His wrath more than that in which the union of marriage is broken by divorce” . Imam as- Sadiq then said that the word talaq ( divorce) occurs repeatedly in the Qur’ an, and that the details of the matter of divorce have been honored p: 308 with the attention of the Holy Qur’ an, The reason for this is that God is an enemy of separation. Tabarsi [ 1] in Makarimu’ l- akhlaq ( Noble Deeds of Morality) quoted from the Prophet“ : Get married, but do not divorce because the throne of Allah shudders when there is divorce” . Imam as- Sadiq said“ : No lawful thing is the object of so much wrath and hate in the eyes of Allah as divorce is. Allah considers the man who repeatedly divorces as His enemy” . This thing is not especially found in traditions from Shi’ ite sources. The Sunnis have also quoted similar traditions. In the Kitab as- Sunan, Abu Dawud quotes from the Holy Prophet that Allah declared lawful nothing so abominable to Him as divorce. Mawlavi ( Jalalu’ d- Din Rumi) in his well- known story of Musa ( Moses) and the shepherd alluded to the same tradition of the Prophet when he said: As far as possible do not step into separation. For ‘ the most detestable thing to me is divorce’. In the biographies of the leader, and guides of our religion it is observed that, as far as possible, they abstained from divorce. It was, therefore, very rare that they divorced a woman, and when they did there was a very reasonable and logical reason for that. For example, Imam ( Muhammad) al- Baqir wedded a woman who was dearly loved by him. Then the Imam became aware that the woman was nasabiyyah, that is, she detested Ali ibn Abi Talib and nourished a grudge against him in her heart. The Imam p: 309 divorced her. The Imam was asked“ , The woman was loved by you, why did you divorce her” . The Imam replied“ , I did not want that a flame from the fires of Hell should be by my side” .
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[1]: Kitab al-Kafi, one of the most authoritative collections of hadith in both usul (principles of faith) as well as fiqh (jurisprudence) compiled by Abu Jafar Muhammad ibn Ya‘qub ibn Is’haq al-Kulayni during the lifetime of the twelfth Imam. This particular hadith is in vol. 6, p. 54 of the Tehran edition. 
[1]: Al-Hasan ibn al-Fadl ibn al-Hasan ibn al-Fadl at-Tabarsi (d. 548/1154) , expert in the science of Hadith.

A malicious tale without any truth Here it is necessary to refer briefly to a baseless and scandalous story which was fabricated by the criminal ‘ Abbasid Caliphs, and was spread about amongst people in general and mentioned in books, that Imam al- Mujtaba[ , 1] the honored son of ‘ Ali, Amir al- mu’ minin, was one of those who wedded large number of women and then divorced them. Because the foundation of this malicious tale was laid almost a century after the death of the Imam, it spread everywhere. The admirers and followers of the Imam also began to talk about it without looking into the truth of the matter and without thinking over the fact that in the view of Islam this is an abominable and detestable thing and is befitting only for a sensuous and ignorant person. It is not the work of a person who used to go to Hajj ( pilgrimage to Mecca) on foot from Medina. During his lifetime, more than twenty times he divided up all his wealth and holdings among the needy and the poor; he took half of it and the other half he distributed among the destitute. How can this mischievous tale accord with the high standing position of utmost piety and infallibility and the Imamate of that venerable personality? As we know, with the change p: 310 of the caliphate from the Umayyids to the ‘ Abbasids, the Bani al- Hassan, that is, the grandson of Imam Hassan cooperate with the Bani al‘ - Abbas, while the grandsons of Imam Husayn, at the head at that time was Imam as- Sadiq, abstained from cooperating with them. The Bani al ‘ Abbas, though in the beginning they showed esteem and respect for the Bani al- Hasan and gave them to understand that they thought them to be worthier of the caliphate than themselves, ultimately betrayed them. Most of them were eliminated from the scene by being beheaded, and some were imprisoned. The Bani al-‘ Abbas began to propagate lies against Bani al- Hasan for the purpose of firmly establishing their political position. One item of their mischievous propaganda was that Abu- Talib, who was the great- grandfather of the Bani Al- Hasan and the uncle of the Prophet, was not a Muslim, and had died an infidel, while ‘ Abbas who was another uncle of the Prophet, embraced Islam and died a Muslim. So the Bani al-‘ Abbas, who were the progeny of the Muslim uncle of the Prophet, deserved the caliphate more than Bani al- Hasan, who were the progeny of an infidel uncle of the Prophet. So as to make this view popularly acceptable, they spent large sums of money and invented false stories. Today, also, a section of the Sunnis, under the influence of the same propaganda and plan, declare Abu Talib to be an unbeliever. However if research were carried out in real earnest among Sunni scholars on p: 311 this subject, they would be able to correct this matter in line with history. The other item of propaganda which they started against the Bani al- Hasan was that they said that the forefather of the Bani al- Hasan, Imam Hasan, succeeded his father to the caliphate, but because he was a libertine, he occupied himself with wedding women, and divorcing them. That is why he could not succeed in the duties of the caliphate. He accepted sums of money from Mu‘ awiyah, his strong rival, abdicated the caliphate in favour of him, and applied himself to the sensuous activities of wedding and divorcing women. Fortunately in the end, eminent scholars of the subsequent period carried out research and arrived at the root of this falsehood. The above comment was first of all made by a judge who was in the service of Mansur ad- Dawaniqi, the ‘ Abbasid caliph, and it was commanded to publicize this falsehood. One of the historians remarked on this circumstance, that if Imam Hasan had wedded so many wives, where was all his children? Why was the number of his sons and daughters so small? The Imam was not sterile, and birth- control and abortion were not the practice of that day. I am amazed at the senseless credulity of the Shi’ ite narrators of traditions. On the one they narrate a large number of traditions from the Holy Prophet and the pious Imams saying that God considers as His enemies men who divorce irresponsibly, and that He condemns them. On the other hand, they p: 312 write that Imam Hasan was a person who divorced excessive number of women. These people never reflect that they should make a choice of one of three courses. Either they should say that there is nothing wrong with divorce and God does not consider as His enemy a man who divorce women in great number, or they should say that Imam Hasan was not a person who divorced many women. The third possibility is for them to declare, God forbid, that Imam Hasan did not abide by Islamic law. However, on the one hand these venerable personages take the traditions of the detestableness of divorce as authentic and genuine, and on the other hand they believe in the exceeding holiness and piety of Imam Hasan and display great esteem and respect for him. Along side this they quote the excessive number of divorces of Imam Hasan, and, without critically looking into the matter, pass on. There are certain others who have gone so far in this matter as to say Amir al- mu’ minin, Ali ( a. s) . was displeased with this behavior of his son. He informed people publicly from the pulpit, and advised them not to marry their daughters to his son because he would divorce them. Despite this, the people answered that they would be proud of the honor of having their daughters married to the grandson of the Prophet. If he wanted them, he could keep them, and, if he did not want them, he could divorce them. Perhaps some people p: 313 consider the consent and agreement of the daughters and the members of their families sufficient to tone down and do away with the detestability of divorce. They think that divorce is to be hated only when the other side is not agreeable to it; but that when the woman desires to have the honor of living a few days with a man she is proud of, there is no harm in divorce. But it is not like this. The consent of the fathers of the girls, and the consent of the girls themselves do not weaken the degree of the detestability of divorce. The reason is that Islam wants only that the ties of marriage should be steadfastly maintained. The agreement of the husband and the wife about separation does not; in this respect very much alter the situation. Islam considers divorce detestable not to oblige or favour woman, and not to receive her gratitude and that of her family members. Her consent and the consent of the members of her family cannot do away with the detestability of divorce. The reason I have brought up the subject of Imam Hasan, besides the point that a false accusation about a historical figure should be refuted whenever possible, is that some persons who are not afraid of God may act in this manner, and then excuse themselves in the light of the example of Imam Hasan. Anyhow, what cannot be denied is that divorce and the separation of husband and wife p: 314 is detestable and hated in the eyes of Islam. Why did Islam not make divorce Illegal? At this point a relevant question can be raised. If divorce is so detestable that someone who divorces a woman is considered to be an enemy of God, why did Islam not declare it unlawful? What hinders Islam from making divorce unlawful, and allowing it only on specifically determined occasions. In other words, would it not be preferable for Islam to prescribe conditions, and only allow a man to divorce a woman in those circumstances? And if divorce were conditional, a judicial aspect would necessarily have entered it. Whenever a man intended to divorce his wife, he would first of all have to submit evidence before the judiciary concerning the fulfillment of the required condition. If the judiciary considered his proof reliable and his arguments reasonable, he would get permission for the divorce, otherwise not. What after all is the underlying meaning of the words‘ : the most detestable of lawful things is divorce’ ? If divorce is lawful, it is not detestable, and if it is detestable, it is not lawful. Being detestable and being lawful are contradictory. Besides all this, the question is whether society, in other words, what is called the judiciary, which represents the society, has the right in divorce, which you say a detestable and hated, to interfere to such a degree that it can hold back a hasty divorce and delay it so much that the man may go back on his determination. At other times, society, that is, p: 315 this same judiciary, may realize that the marriage in question is an incompatible one, and, that it is preferable that the relationship be dissolved. Divorce 3
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[1]: Imam Hasan, the second Imam, brother of Imam Husayn.

point The discussion has reached the point that in the eyes of Islam divorce is vehemently hated and detested. Islam inclines towards maintaining the contract of steadfast and firm marriage. At this point we took up for consideration the question as to why, when divorce is hated and detested to this extent, Islam did not declare it unlawful. Does Islam not prohibit every activity which is detestable like drinking, gambling and tyranny? Why did Islam not declare divorce altogether unlawful, and why has it not put a legal prohibition on it? What is the logic in saying that divorce is a lawful but detestable thing? If it is lawful, what does it mean to say that at the same time it is detested; and if is detestable, why should it be lawful? On the one hand Islam frowns at the man who divorces his wife, and feels disapproval and disgust towards him, but, on the other hand, when the man wants to divorce his wife, it puts no legal barrier up against him. Why should this be so? This is a very relevant question. All the mystery lies in this very point. The real secret, the crucial point, is that marriage and the life of a husband and wife is a spontaneous relationship and is not based upon contract; special laws have been stipulated in nature for p: 316 it. The pact is intrinsically different from all other social agreements, such as sale agreements, leases, conciliations, mortgages, and the power of attorney and so forth, all of which are merely a series of social contractual agreements; one’ s nature and disposition have nothing to do with those things. Moreover, neither have any laws in the natural or innate sense been determined for them; in contrast to the marriage agreement, in which the natural inclination of the two parties, which has, so to speak, a special mechanism, should be taken into account. For this reason, if the marriage contract has provisions which other agreements and contracts do not have, it should not be an occasion for surprise. Natural laws in the case of marriage and divorce: In civil and social life, the natural law is the law of freedom and equality. All social arrangements should be based upon the two principles of freedom and equality and not anything else, unlike the pact of marriage, for which, in nature, principles other than freedom and equality have also been provided, and there is no alternative except to observe these laws. Divorce, like marriage, has a law in the framework of nature prior to any contractual, positive law. Just as in the start of the matter and in its intermediary period, that is, during married life, the laws of nature should be observed, so also in divorce which is its termination, these laws must be kept in view( . We mentioned these things in the sections on proposing, on dower and maintenance, and especially in the p: 317 e section on the differences between men and women). To leave the matter wholly to nature would serve no purpose, for, as Alexis Carrel has said, the biological laws pertaining to life, are like the laws of the heavens: strict, cruel and unopposable. Marriage is unity and coming together, and divorce is separation and breakage. When nature has to contrived the law of pairing and union of man and woman in such a way that from the one side there is effort to take possession and from the other side there is giving way for the purposes of charm and attraction, the feelings of the one side are based on getting the person of the other and the feelings of the other side are based on capturing the heart of the other. When nature laid the foundations of marriage on love, unity and sympathy of feeling, and not on the basis of working together and comradeship, and when the nature has arranged the design of the family on the centrality of the more delicate sex and the orbiting of the coarser sex, the separation, disunion and breaking up of this home and the wreck of this harmonious system should also follow a special arrangement. In our fifteenth article, we quoted an eminent thinker as writing “ Finding a mate means for men an attack for domination and for women giving way for the purposes of charm and attraction. The actions of man, since he is by nature a hunting animal, are p: 318 aggressive and positive and woman is for him a prey which he must trap. Finding a partner is a battle and a combat and marriage is possession and authority” . The contract which is based on love and unity, and not on working together and comradeship, cannot be forced or coerced. It is possible to bind two individuals to work together by force of law, and they consider their contract to work together to be based upon justice, and so, worthy of being respected, and they will go on for a number of years working together. However, it is impossible to order two individuals to love each other and be sincere to each other, to command one to devote him or herself to the other, and to consider the happiness of the other, as his or her own happiness by force of law. If we want such relations to exist between two individuals, we must make use of other practical and social contrivances apart from the imposition of legal obligations. The natural mechanism of marriage, on which Islam has based its laws, is that the woman should have a position of being loved and respected in the family order. Consequently, if, for some reason, the wife has fallen from this position and the warmth of the love of the husband for her has cooled down and he has lost his affection for her, the foundation and the main pillar of the family had been destroyed. In other words a natural social unit p: 319 has been destroyed by a rule of nature. Islam views this situation with regret, but once it is evident that the natural basis of that marriage has been destroyed, Islam cannot continue to imagine it to exist and be alive from a legal point of view. Islam tries, and takes specific steps to maintain the life or of a family, that the woman should remain in the position of being loved and being sought after, and the man in the position of the seeker, the lover, ready to help. Islam recommends that a woman should make herself attractive to her husband, that she should employ her skills in new ways for her husband, that she should satisfy her husband’ s libidinal needs and that she should not turn down his advances and thereby create complexes and neuroses in him. Correspondingly, Islam has recommended the man to be kind and affectionate towards his wife and to demonstrate his affection and love for her; he should not be reticent in his love for her. The plan of Islam in these recommendations is that the enjoyment of sex should be confined to milieu of the family. Large gatherings should be an environment for work and other activities, and not a focus of sexual pleasures. The recommendations of Islam are all grounded in this principle that contacts between men and women outside the frame of reference of the marriage must necessarily and definitely be morally impeccable and without lubricity. All these things have as their p: 320 sole and unique aim that the family units of the society should be guarded and protected from being broken up and destroyed. The natural status of man in family life: In the eyes of Islam, the greatest insult for a woman is that her husband should say to her“ , I don’ t love you. I hate you”, but at that stage the law may seek to keep the woman forcibly and by compulsion in the house of that man. Law can by compulsion retain the woman in the house of that man, but it cannot possibly keep her in her natural position in the conjugal environment, that is, the position of being loved and centrality. The law has the power to safeguard the material interests of the wife like enforcing her right to maintenance, and so forth, but it has no power to force the husband to maintain his position as a devoted person lovingly revolving round his wife. So whenever the fire of the love and affection of the husband is extinguished, the union of marriage, from the natural point of view, subsists no more. We are confronted with another question here. If that fire of love is extinguished on the side of the woman, what is the situation? Does family life continue and flourish in spite of the fact that the wife’ s warmth of affection for her husband has cooled down, or does it not? If it does, what is the difference between a woman and a man, whereby man’ s indifference and apathy is the cause of p: 321 the end of family life, while the woman’ s apathy is not the cause of its breaking up? If an end in the warmth of a wife’ s love brings family life to a stop, and if and when the woman declares her apathy towards her husband, should we consider the marriage to have ceased to exist and should we give the wife also the right to divorce? The answer is that family life depends upon the affections of both sides, not of one. The only thing is that the psychology of women and men is different in this respect, and we have established this point on the authority of eminent thinkers in our previous articles. Nature has devised the ties of the husband and wife in such a form that the part of the woman is to respond to the love of the man. The affection and love of a woman which is genuine and stable can only be that love which is born as a reaction to the affection and admiration of man towards her. So the attachment of the woman to the man is the result of the attachment of the man to the woman and depends upon it. Nature has given the key to the love of both sides to the man, the husband. If he loves his wife and is faithful to her, the wife also loves him and remains faithful to him. It is an admitted fact that woman is naturally more faithful than man, and that a p: 322 woman’ s unfaithfulness is a reaction to the unfaithfulness of the man. Nature has deposited the key of the natural dissolution of marriage in the custody of man. In other words, it is man who by his own apathy and unfaithfulness towards his wife makes her cold and unfaithful. Conversely, if the indifference begins on the side of the wife, it does not effect the affection of the man, rather; incidentally it makes the affection more acute. Consequently, the indifference of the man leads to indifference on both sides, but the indifference the woman does not lead to indifference on both sides. Coldness and the extinction of love in the husband is the death of the marriage and the end of the family life, but the wife’ s coldness and the extinction of her affection towards the husband drives her to the state of a half dead patient with a hope of recovery. When the coldness begins on the side of the wife, if the husband is wise and faithful, he may regain the warmth of affection of the wife by expression of love and kindness. It a not an insult for man to keep his disillusion beloved by force of law until she gradually regains her affection, but it is unbearable for a woman to have to seek the force and the constraint of the law to keep her supporter and his love. This is of course in such situations where the cause of the apathy of the woman is not p: 323 the immorality and cruelty of the husband. If the husband begins to tyrannize his wife and she because of the oppression and cruelty of her husband becomes unaffectionate towards him that is quite another thing. We shall discuss this matter separately, man, in connection with the second problem to be discussed, we shall put forth our point of view that is, we shall discuss the unmanly way in which some husbands withhold divorce. Concerning this we shall say that this kind of men should not be allowed to take advantage of his wife and keep her with him to be cruel to her and to tyrannize her. Briefly, then, the difference between the man and the woman lies in the fact that the man needs the person of the woman, while the woman needs the heart of her husband. The affectionate support and kindness of the husband is so valuable for the wife that without this the marriage becomes unbearable for her.

The view of a female psychologist: In issue number 113 of Zan- e ruz, an article was published from a book called the psychology of mothers by a French woman, Beatrice Marbeau. According to the article, she is a psychiatrist. She is a psychologist and psychoanalyst attached to the Paris hospitals, and is herself a mother with three children. In this article, a woman’ s need of the love and kindness of her husband when she is pregnant has been well explained. She says“ , From the time that a woman has the feeling that she will shortly be p: 324 a mother, she begins to watch, examine and smell the different parts of her body, especially when it is her 1st child. This state of inquisitiveness is very important. It is just like the state of a woman who is a stranger to herself and wishes to discover herself. When, for the first time, the woman feels the slight movements of her tiny child within her womb, she begins to listen to all the sounds of her body, The presence of another being within her body gives her such a feeling of well- being and pleasure that she gradually seeks to be apart and alone and cuts connections with the outer world The reason for this mental state is that she wishes to be alone with her embryonic child who has not yet come into this world…. “ During the days of the pregnancy of their wives, husbands have a very important job on their hands but they always, regretfully, avoid carrying out these duties. The future mother wants to feel that her husband understands her, loves her and supports her. Otherwise when she sees that her stomach has swollen and her beauty is impaired, and she feels sickness and is afraid of the delivery, she will put the blame on her husband for all those discomforts for it was he who made her pregnant… It is the duty of the husband to stay by the side of his wife much more than before. The members of a family need to speak directly to p: 325 a kind father of all their difficulties, sorrows and pleasures, even if their talk is senseless and boring. A pregnant woman very much needs to talk about her child. All the pride and honor of a woman is in her being a mother, and when she feels that her husband is indifferent towards the child whom she shall soon bring forth into the world, that feeling of pride and honor is changed into hate and futility. She begins to hate the thought of being a mother, and pregnancy begins to mean for her arriving at the point of death. It has been proved that mothers who have become disillusioned in this way bear the pains of birth with very great difficulty... The relation of a child and its mother is not the relation of two individuals. As a matter of fact it is the relation of three persons, the mother, the baby and the father; and the father, even if he is absent ( he may have divorced his wife, ) has a basic role in the inner life of the woman, in her ideas and thoughts, and also in her feeling of being a mother. These are the ideas of an eminent woman thinker who is a psychologist as well as a mother. The structure which is built on affections and feelings: Now seriously consider whether a person who depends to this extent upon the sympathies, sincere affection, support and kindness of another person, and who is able to endure everything on the strength of that person’ s affectionate behavior and p: 326 kindness, so much so that even that person’ s own child has no proper significance without that other persons feelings of love and affection and not just his presence, whether that needing person can possibly be forced by law to be attached to the other being who is man. Is it not a mistake that, on the one hand, we provide sources to encourage permissiveness and incentives for men to lose interest in their wives, and everyday provide more and more circumstances to excite sexual passions, and then, on the other hand, we want to bind wives to their husbands by force of law? Islam has provided the conditions for the husband to really want and love his wife, but Islam has never wanted to unite woman and man by force. As a general rule, whenever there is a question of the interest of the heart, devotion, sincerity and the such like being the basic determining factor, the force of law has no place. It may be regrettable in some cases, but there is no point in compulsion, coercion and obligation. For example we know that in communal prayers ( salatu ‘ l- jama’ ah) the righteousness of the Imam and the confidence of those who follow him in prayers in his righteousness is a necessary condition. The relation of the Imam and those who follow him in prayers is a relation which has for its base the righteousness of the Imam and the confidence, devotion and sincerity of those who follow him. The p: 327 heart and the feelings are the basic pillar of this relation. For this very reason this relation does not admit of any force or coercion. The law cannot guarantee the continuance and maintenance of this relation. If the followers in prayers sever their connections with the Imam and their faith and devotion is disturbed, this connection automatically breaks up, irrespective of whether this lapse of faith and devotion is well- founded or not. Suppose the Imam had the distinction of having the highest degree of righteousness, piety and competence, but he could not make people follow him in prayers. It would be ridiculous for the Imam to approach the court of law and complain against the people about how they have no faith in him, and how they should not devoted to him and finally how they do not follow him in prayers. Rather, it would be a most contemptible thing for the Imam to compel people to follow him in prayers by force of law. The same is the case of members of Parliament and their constituency. The nature of this relation is such that it should be based on a feeling of trust and faith. A feeling of devotion and goodwill is the vital pillar of this relation and cooperation. People must have faith, trust und confidence in the representative whom they elect. If people do not elect an individual, he cannot and should not force people to elect him, even if the people are mistaken in their assessment p: 328 and the man is the most competent and deserving candidate, because the nature of electioneering and voting is incompatible with compulsion, and such a man cannot, on the strength of his competence, approach a court of law with a complaint about how people, in spite of his being so- and- so did not elect him. What is required in circumstances like this is that the level of thought of the people should be raised. Their education should be carried out in the right way so that whenever they want they can perform their religious duties in a correct way. They should find out who really are the righteous persons, and then attach themselves to them and follow them. When they want to perform their duties in society they should be able to find out the competent persons, and, according to their inclinations and loyalties, cast their votes for them. If it happens, after some time, that people change their convictions and move towards some other person, and have even done this without any justification for their action, it is, no doubt, regrettable; but it is not an occasion for compulsion and the use of force. Family duties are just like religious duties and social duties. The main point is that we should understand that Islam considers family life to be a natural social unit and that for this natural social unit a special mechanism is called for, and that it is necessary and unavoidable to keep that mechanism within view. One of the miracles p: 329 of Islam is that it has determined what this mechanism is. The Western world has ignored this aspect of human relations and that is why it cannot overcome the difficulties surrounding family affairs. Every day a new difficulty arises. However, fortunately, scientific research is gradually bringing it to light. I am quite sure and can confidently assert that by scientific enlightenment the western world will gradually accept principles in the regulation of their family life. Of course, I realize that my concept of the sound and enlightening teachings of Islam is not what most people understand it to be. It is something more than equality which strengthens the foundation of the family: What the Western world professes to be fond of is equality, but it does not know that Islam has already solved the question of equality fourteen centuries ago. In the affairs of the family, which has its own order, there is something which is superior to equality. Nature has decreed equality only in civil social life and that is all, but in the family unit it has designed other laws, too, besides that of equality. Equality alone is not sufficient to regulate family relations. In relations, all the laws of nature should be kept in view. Equality in corruption: Unfortunately the word ‘ equality’, has lost its true connotations and meaning due to much repeated and excessive use. A few think that the meaning of ‘ equality’ is equality of rights, and they imagine that when they have applied the concept of equality to one situation their work is finished. These uninformed persons think that formerly men used p: 330 to deceive women, but that now, since women also deceive men, everything is all right, because equality in deception has been established. In the past, ten out of a hundred marriages were terminated by divorces and separations which were in the hands of men, but now, in some parts of the world, forty per cent of marriages are terminated by divorce, and in half this number the move is made by the wives. So they should rejoice and be happy that perfect equality has been established. Formerly it was only the men who were treacherous to women, and it was only men who were not God- fearing and pious. Today, fortunately, women also commit breaches of mist and are not pious and God- fearing. What can be better than that? Long live equality! Down with inequality! Formerly men were the symbols of cruelty and oppression. It was they who, despite having a few darling children, went after a new love, leaving behind the wife and children. And now wives, long- married, after living for years joined with their husbands in matrimony and with several children, abandon their hearth and home with complete cruelty and faithlessness, impressed by an introduction to another man at a party. They leave to satisfy their desires. What a good thing. What can be better than that? Men and women have come to stand on the same footing and equality has been established. Instead of remedying the endless number of social ills, reforming the weakness of men and p: 331 women, and strengthening the structure of the family home, we are further damaging it and making it more unstable, yet we rejoice and make merry and are perfectly satisfied that, anyhow, we are stepping forward in the direction of equality. Perhaps our only fear is that gradually women will gain victory over men in corruption, perversion, heartlessness and cruelty. It is thus clear why Islam, despite the fact that it considers divorce to be detestable and hated, does not legally ban it. By now the meaning of a legally permissible but detested thing should have become clear. The question as to how it is possible for a thing to be legally permissible but intensely detested and hated should now have been solved. 
Divorce 4
point From our previous discussions we hope it has become clear that Islam is opposed to divorce and the dissolution of the family home; it is her enemy in and Islam has resorted to various kinds of moral and social precautions to safeguard the environment of the family against the danger of its breaking up. Islam has used every means and every weapon to avoid the occurrence of divorce except force and the weapons of the law. Islam is against the use of force and the weapons of the law to restrain man from divorce and to keep the wife in the house of her husband. It is considered incompatible with the position and the status which a wife should maintain within the family. The reason for this is that the p: 332 main pillar and the foundation of home life are the affections and the sentiments; and the person who should be the recipient, the central object and the beneficiary of the kindness and love, and who should in her own turn transmit this love and affection to her children is the wife. Apathy and coldness in the affections of a husband towards his wife makes the family environment dark and dismal. The sentiments and the attitude of the husband towards his wife have much bearing even upon the motherly feelings of the wife towards her children. According to Beatrice Marbeau, whose extract we quoted in the previous section, motherly feelings are not instinctive in the sense that in all circumstances it follows that a mother will always have the same warmth of feeling, not more and not less. The kindness and affection of her husband towards her have a great effect on her maternal feelings. The result is that wife should receive kindness and affection from her husband so that she may be able to feed her children at the bountiful springs of her love and affection. The husband is like the highlands, the wife is like a spring and the children are flowers and plants. The spring receives and stores the rain from the highlands so that it may give rise to clean and limpid streams which will irrigate and cause flowers, plants and meadows to flourish. If rains do not fall on the highlands, or if they are of a p: 333 kind that does not absorb anything, the springs will dry up, and the flowers and plants will fade and die. So just as the main source of life for plains and fields are the rains, especially the rains of the highlands, the main source of family life is the kind and affectionate feelings of the husband towards his wife. It is from these sentiments that the wife’ s life as well as that of the children is serene, bright and flourishing. How can it be possible to have recourse to the law as a weapon and scourge against the husband, when the sentiments and affections of the husband towards his wife have this vital position and produce this animating effect in the very spirit of the life of the family. Islam is completely against unmanly divorce, by which we mean that a man after undertaking to live with a woman as a husband, and after living together with her for a period, takes a fancy to a new woman, or indulges in some other aspiration, and drives away his former wife. However, the remedy, according to Islam is not to force the unmanly husband to keep his wife. This kind of keeping is intrinsically incompatible with the natural law of family life. If the wife wants to return to the house of her husband by the power of the law and the administration, she can forcefully secure the occupation of that house, but she cannot regain the position of the woman of that family and p: 334 be the intermediary in reviving the affections of her husband and transmitting them to the children. She is also unable in this way to satisfy her own inward urge to receive the devoted affections of her husband. Islam has endeavored to do away with unmanliness and with unmanly divorces, and has advised men they should be generous towards their wives and behave towards them with affection and kindness. Nevertheless, in its capacity as law- giver, and bearing in view the position of the woman as the centre of the family system and as the intermediary in the receiving and transmitting of sentiments, Islam does not agree with forcibly and compulsorily retaining the woman in the home of an irresponsible person. What Islam has done is exactly the opposite of what occidentals and worshippers of the west have done and are doing. Islam vehemently fights against the factors of unmanliness, faithlessness and promiscuity, but it is not willing to force a woman to stay with an unmanly and faithless person. Nevertheless, every day occidentals and those who worship the West add to the factors which cause waywardness, promiscuity and sensual gratification in men and then want the woman to remain with a promiscuous, faithless and irresponsible man. We hope it will be acknowledged that, in spite of the fact that Islam has not forced wives to stay with undesirable persons and has set them at liberty; it has diverted all its endeavors towards enriching the human spirit and its decency. It has been p: 335 able in fact to lower the number of unmanly divorces by its very noticeable sense of equilibrium, although others, who are unmindful of these matters, which resort to force and try to get everything they want at the point of the bayonet, have had very little success in this connection. With the exception of these cases of divorce which take place on the initiative of wives on the plea of incompatibility, and, in the words of Newsweek, because women are becoming more demanding of sexual gratification…… those cases of divorce which have taken place and are still taking place there through the capriciousness of husbands to gratify their sexual whims far exceed in number the cases which take place in our midst.

The nature of peace in the family is different from all other forms of peace: Peace and amity should definitely exist between wife and husband. Nevertheless, the peace and amity which should pervade family life are very different from the peace and amity that should obtain between two colleagues, two partners, two neighbors or two adjacent countries which have common frontiers. The peace and amity in the life of the married couple is similar to the peace and amity that should subsist between parents and their sons and daughters; which means generous treatment, self- denial, concern with each other’ s future, breaking down the barrier of duality, considering the happiness of the other to be his or her own happiness and the misfortune of the other to be his or her own misfortune. This is different from the peace and amity that holds between colleagues or partners, p: 336 or neighbors or two countries. The peace which we mean by the peace between colleagues and so on signifies non- intervention in, and non- encroachment on, the rights of each other. Between two enemy countries even ‘ suspension of armed hostilities’ is sufficient. If some third power interferes and occupies the border- land between the two countries and hinders the armed confrontation between the two countries, peace subsists, because a political peace has no other meaning than non- intervention and non- interference. However, the peace of the family is different from political peace. In the peace of the family, non- encroachment on the rights of one by the other is not sufficient. An armed peace is of no avail. Something both more advanced and more basic is needed. Unity, oneness and the union of spirits into a single whole should be established as in the case of the peace and amity between, fathers and sons, and something more exalted than non intervention is necessary. Unfortunately, because of certain historical reasons and possibly because of its geographical position, the west is stranger to sentiments ( even within the environment of the family). In the thinking of westerner, the peace of the family has little difference from a political or social peace. According to the same pattern as the accumulation of strength on the border of two countries, he makes peace. He wants to make peace while focusing his strength on the frontier of the lives of the wife and the husband, and he is oblivious to the fact that p: 337 the foundation of family life rests upon the dissolution of these frontiers, upon oneness and upon considering every other power as foreign. Instead of diverting the attention of occidentals towards their mistaken conception of family life and their pride in their own impressive individuality, the worshippers of the west are so far lost in imbibing occidental ways of life that they are utterly confused and have even forgotten themselves. But this state of being lost to them cannot last for ever. The time when the east will discover her own personality, rend asunder this halter of worshipping the west, and rely on its own ways of thought and its own philosophy, is not far off. At this stage, it is necessary to mention two points. 1. Islam welcomes any factor that will do away with divorce: Some persons may possibly have got the impression from what we said so far, that we believe that there should he no obstacle for a man to divorce, and that as soon as a man makes up his mind to divorce, the way to it should be cleared for him in every respect and from all directions. No, we never meant such a thing. What we said concerning the Islamic view was only that there should be no recourse to compulsion and legal force as a deterrent to prevent a man from divorce. Islam welcomes everything which could be instrumental in dissuading a man from divorce, and has purposely laid down conditions and has ordained hard p: 338 and fast rules which naturally have the effect of delaying, and may, in all probability, result in dispensing with, the divorce. Besides advising the administrators of the marriage oath ( sighah, ) the witnesses and others to make efforts to dissuade the man from divorce, Islam has ordained that the divorce should not be considered lawful and rightly administered except in the presence of two righteous witnesses. This condition is for the good reason that when a divorce is to be administered in their presence, because of their righteousness and piety, they will try their best and make an extreme effort to bring about reconciliation between the wife and the husband. Despite this, the present practice is that the person carrying out the divorce pronounces the divorce before two righteous witnesses who have never seen the husband and the wife before and do not recognize them. Only the names of the wife and the husband are mentioned before them. However this is all a meaningless routine and it has nothing to do with the viewpoint and the purpose of Islam. In our midst the practice is that those carrying out the divorce gather two righteous persons and pronounce the names of the wife and the husband before them, for example, they say“ : The husband is Ahmed and the wife is Fatimah; I, as a representative of the husband, divorce the wife” . However, who are that Ahmad and Fatimah? And have the righteous witnesses, who listen to the pronouncement of words of divorce, p: 339 ever seen them. If there arises an occasion some day when evidence is required, could they bear witness that the divorce of these two particular persons was administered in their presence? Of course not I am quite sure. In any case, one of the things which, tends to dissuade men from divorce is the presence of these two virtuous persons, provided that the right method is adopted. Islam has not laid down the presence of two righteous persons as a necessary condition for marriage, which is the beginning of the contract because it did not want to cause practical delay in a virtuous deed. But for divorce, in spite of its being the end of the contract, the presence of two righteous persons is laid down as a necessary condition. Like wise, Islam has not laid down that the woman’ s monthly period of menstruation should be an obstacle in the performance of the marriage agreement, while it has laid down this thing as an obstacle to obtaining a divorce, even though, as we know, menstruation ( as far as the Divine law is concerned) prevents the husband and wife having sexual intercourse and thus has relation to marriage but not to divorce which is the occasion of a final separation, from which time on the man and the woman will have nothing to do with each other. Normally speaking, Islam should have prohibited the marriage agreement taking place during the period of menstruation, so as to avoid the danger of an p: 340 infringement of the necessary staying apart of a man and woman who are with each other for the first time. Divorce, on the other hand, results in separation, and menstruation is of no consequence in this connection. Islam for all its being in favour of ‘ union’ as against ‘ separation’, laid down the monthly period as an obstacle to the lawfulness of divorce, while Islam did not deem it necessary that this period should stand in the way of the lawfulness of the marriage contract. In some cases a period of three months during which no intercourse took place is required before it is permissible to divorce. It is evident that all these obstacles and hindrances are meant to ensure that during this period the violence of passions and the displeasure which may have contributed to the decision to divorce should subside, that the man and the woman may have time to make amends, and thus the divorce may be dispensed with. Besides that, when the cause of the divorce is the displeasure of the husband and the divorce takes place in the form of a revocable divorce, the man is allowed period of grace called ‘ iddah, during which he can revoke the divorce and return to his wife. Since Islam has laid down that the expenses of the marriage, the expenses of the period of iddah, and the expenses of the maintenance of the children should be the responsibility of the man, it has there by devised a practical obstacle to p: 341 a man’ s going to that length. A man who wants to divorce his wife and marry some other woman must pay for the maintenance of his former wife during the period of iddah, he must be responsible for the expenses of the children that he may have had by the wife he is divorcing, he must provide a dower for the new wife, and he must once more bear the burden of the living expenses of the new wife and the children that are born to her. These things, in addition to the responsibility of the supervision of the motherless children, present an awful prospect for the man who would divorce. All these things are themselves a check on his determination to divorce. Over and above all these things, where there is a fear of the dissolution and the break up of the family peace, Islam has required that a family “ tribunal” be formed and set in motion. It should be arranged in this manner, that one individual arbiter representing the husband and another representing the wife be chosen to investigate and reconciliate. The arbiters have to try their best to remove the hurdles and differences, and if then, after direct consultation with the wife and the husband, they discern that separation between them is the only remedy; they can carry out a separation between them. In the event that persons having the ability to arbitrate can be found in the families of the wife and the husband, they are to p: 342 be preferred to the others; this is the actual saying of the Qur’ an. In verse 35 of the chapter an- Nisa( ’ The Women, ) the commandment comes in the following words: خَبِیرًا عَلِیمًا کَانَ اللَّهَ إِنَّ ۗ بَیْنَهُمَا اللَّهُ یُوَفِّقِ إِصْلَاحًا یُرِیدَا إِنْ أَهْلِهَا مِنْ وَحَکَمًا أَهْلِهِ مِنْ حَکَمًا فَابْعَثُوا بَیْنِهِمَا شِقَاقَ خِفْتُمْ وَإِنْ And if you fear a breach between the two, bring forth an arbiter from his people and from her people an arbiter, if they desire to set things right; Allah will compose their differences; surely Allah is All- knowing, All- aware. The writer of the commentary al- Kashshaf, commenting upon the word ‘ حُکم arbiter’ writes“ : the person who is selected, should be trustworthy, influential and impressive in his talk, acceptable and capable of proper peace- making arbitration”. He afterwards says that the reason the arbiters should be selected in preference from among the members of the families of the husband and the wife is that closely related persons better know the actual position that exists between them. Besides that, since they are relatives, they are more interested in their reconciliation than strangers. Moreover, the wife and the husband will disclose their inner secrets better to relatives than to strangers. They will speak out secrets before their own kith and kin which they would not be prepared to speak out in front of strangers. There is a difference of opinion amongst religious scholars as to whether the setting up of the arbitration tribunal is obligatory or merely recommended. Some eminent researchers believe that that is p: 343 a duty of the government of the day, and is obligatory. Shahid ath- Thani, in al- Masalik [ 1] explicitly pronounced his legal decision that the matter of arbitration, in the manner we have mentioned, is obligatory and necessary, and that it is the duty if the ruler always to see that it happens. Sayyid Muhammad Rashid Rida[ , 2] the writer of the Qur’ an commentary al- Manar, after putting forth his view that the convening of the arbitrating body is obligatory, refers to the controversy of religious scholars concerning whether it is obligatory or recommended says“ : If there is one thing that does not exist among the Muslims it is the taking of action according to this commandment and benefiting from its infinite advantages. Discords and disputes take place every day. Discords and disputes make their way into homes, but not the slightest use is made of the principle of arbitration which is commanded by the actual text of the Holy Book. All the energy of religious scholars is being spent in debates and disputes as to whether it is obligatory or recommended. None came forward to ask why, if it is obligatory or recommended, whichever it may be; no practical steps are taken to comply with this clear commandment? Why should all your energies be spent in debates and quarrels? If it has been decided that no action is in actual fact to be taken, and that people are not to benefit from its advantages, what is the difference in its being obligatory or recommended” ? p: 344
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[1]: See note 1 under “Freedom in determining one’s future” 
[2]: Muhamnad Rashid Rida (1865-1935) , Muslim scholar who spearheaded an intellectual response to the encroachment of western values in Muslim countries. He published the newspaper al-Manar which published his Tafsir al-Manar in installments and which promulgated the views of the new Islamic reformist perspective of himself and his intellectual predecessors Muhammad ‘Abduh and Jamalu’d-Din al-Afghni. His commentary was published in twelve volumes (incomplete, up to surah Yousuf) in Cairo (Tr. )

Shahid ath- Thani [ 1] says concerning the powers and the authority which the two arbiters have that they may, for example, oblige the husband that he should put up the wife in such and such house, or that he should not keep his mother or his other wife in that house, not even in a separate room, or, for example, that he should pay any dower money to his wife which he had promised to pay in cash, or in case he had borrowed money from her, that he should pay it back. The purpose is that every strategy which can bring about a reconciliation, or at least delay the divorce, is right and desirable in view of Islam. . Here it is necessary to answer the question which can be put in this form: Has society, that is, the body, whether it is called a department or whatever, which is the representative of society, the right to interfere in the matter of divorce, which, in the view of Islam is detestable and disliked, with a view to preventing or delaying the decision of the husband to divorce? The reply is that of course it can do such a thing. The reason is that all decisions which are taken to divorce are not indications of a real death of the union of marriage. In other words all decisions which are taken to divorce the wife are not due to the complete extinction of the fire of love of the man, or the falling of p: 345 woman from her natural position, or, finally, the inability of the husband to maintain the wife. Most decisions are taken under the influence of emotion and rashness, and in error. By all means society may take steps to any extent to see that decisions arising from hastiness and rashness should not come to fruition. This is a proper step and is a thing which Islam would welcome. The departments who represent society should prevent the persons in charge of the divorce court from carrying out a divorce until the department has informed them of its failure in its attempts to bring about reconciliation between the husband and the wife. The department should try to make the husband and wife return to amity and goodwill, and only if it has evidence that there is no possibility of reconciliation and adjustment between the husband and wife, should it issue a certificate of the non- feasibility of reconciliation and inform the divorce court accordingly. 2. The wife’ s past services to the household: The other point is that in unmanly divorces, over and above the dissolution of the sacred peace of the family, there arise special difficulties for the wife which should not be overlooked. The wife conducts herself sincerely while she lives for years in the house of her husband. As she has no idea of any duality between herself and the husband, and considers the house to be her own house and her own refuge, she does her best and strains every nerve to p: 346 furnish, equip and improve the facilities of the home. Most women ( with the exception of the modern town woman) work hard, and take pains to economize in food, dress and the other expenses of the house to such an extent that their husbands disagree with them. They very often refuse to employ a home- help for economic reasons; they sacrifice their energy, their youth and their health for the home, their abode, their refuge, and, in reality, they do all this for the sake of the husband. Now, suppose that the husband of a wife like this, after years of life as a partner, takes a fancy to a new wife and divorces the previous wife, and wishes to bring the new wife into the refuge and home of the first wife, which was created at the price of her life- blood, her youth, her health and her frustrated aspirations. He wants to live in luxury with the second wife on the product of the labors of the first wife. What is the proper course to pursue in cases like this? In such, situations, as mentioned above, the matter to be looked into is not only the question of the upsetting of the peace and tranquility of family, and the breaking up of the tie of conjugality. It is not the place here to say that the disgraceful behavior of the husband is the cause of the death of the union of marriage, and that forcing a woman to remain with an p: 347 irresponsible man is below the natural dignity of the wife. Here, there is another problem to be tackled. Here the matter of evacuation and of being homeless and of handing over one’ s own place of refuge to an intruding rival comes in. The thing to be considered here is a situation in which taking pains; toiling, enduring hardships and being of service come to nothing. Forget about the husband, the peace of the family and the cooling down in family affections. Every human being needs a shelter, a place of refuge, and then with the shelter and the home, which one builds up with one’ s own hands for one’ s own use, one has affection and attachment. If you turn out a bird from its living- place, the nest that it has built for itself will naturally defend itself. Has the wife no right to defend her refuge and home? Is such a thing not severe cruelly in the part of the husband? What remedy has Islam provided for this aspect of the situation? Our view is that this complicated matter requires full attention and careful thinking out. Most of the difficulties that result from unmanly divorces are of this nature. It is in cases like this that divorce is not only the dissolution of conjugality, but is rather the break down and complete annihilation of the woman. Nevertheless, as it was suggested in the posing of the problem itself, the matter of housing and shelter is distinct from the matter of p: 348 divorce. These two difficult matters should be differentiated and considered separately from each other. According to the Islamic view and its laws, this difficulty has already been solved. It is due to an ignorance of Islamic laws, and the taking of advantage of the good intentions and faithfulness of wives by husbands, that this difficulty presents itself. The source of this difficulty is that most husbands and wives imagine that the work and the services that a wife renders in the house of her husband and the gains that accrue from them, belong to the man. They believe that a husband has a right to give orders to her as if to a slave or a laborer, and that it is obligatory on her to carry out his orders in all and sundry matters. As we have repeatedly said, a wife has independence in connection with household work and activities, and any work that she does is for the benefit of herself. The husband has no right to pose as an employer. With the full economic independence that it has granted to woman, and, besides that, with the laying down of the responsibility of her expenses and the expenses of her children on the husband, Islam has given her enough leisure and the complete opportunity to make herself economically independent of man and to obtain the means of a respectable living. This she should be do to such an extent that, in this regard, the divorce and the separation cannot p: 349 create any problem for her existence. All those things which a woman may contribute to the house and her home should be considered by her to be her own property, and the husband should have no right to take those things from her. This kind of anxiety exists in the system of the family, because the husband considers his wife to be obliged to work in the house, and also imagines that the results of his wife’ s work belong to himself and not to his wife. The anxieties which exist amongst our men too are also due to ignorance and being unaware and unmindful of Islamic law. The other cause of these discomforts is that husbands take undue advantage of the faithfulness of wives. Some women, not because of ignorance of Islamic law, but rather because they place their confidence in their husbands, make sacrifices in their homes. They wish there to be no question of ‘ mine’ or ‘ yours’ in between them and their husbands. On these grounds, they take no notice of their rights and do not care to take advantage of the opportunity which Islam has granted to them. Sometimes it so happens that they are disillusioned, and they come to know one day that they sacrificed their life for a faithless being, and that they missed the chance to avail themselves of the right which Islam has guaranteed them. Such women should take care from the beginning: How fortunate it is that affection arises on both sides[ . 1] If p: 350 a woman rises above making use of her legal right to save and keep money and wealth in her own custody, to make arrangement for residence in her own name, and instead makes a gift of the energy of her work to her husband, the husband also, according to: رُدُّوهَا أَوْ مِنْهَا بِأَحْسَنَ فَحَیُّوا بِتَحِیَّةٍ حُیِّیتُمْ وَإِذَا And when you are greeted with a greeting, greet with a fairer than it or return it( ; Qur’ an, 4: 86) should make a present of a reciprocal amount or more to the wife as a gift. Amongst thoughtful and considerate men, it has always been a practice, and still is, that in return for the sacrifices and sincere services of their wives, they give something of value, a house, or some other landed property, as a gift to their wives. However what we want to say that the difficulty of the wife being shelterless has no connection with the law of divorce. Any amendment in the law of divorce will not reform or improve things in this connection. This difficulty is related to the question of the economic independence and non independence of the wife, and Islam has completely solved it. This difficulty in our society arises from the unawareness of number of women of Islamic teachings and the negligence and naivety of the others. If women are aware, take notice, and make use of the opportunity is granted to them in this connection, and are not so simple as to sacrifice and waive their p: 351 rights in favour of their husbands, this difficulty is solved by itself.
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[1]: See note 1 under “Freedom in determining one’s future” 
[1]: Quotation, from the quatrains of the famous Iranian poet Baba Tahir Hamdani

Divorce 5 point Our worthy reader may remember that in the second part of this section on divorce, we said that our worries about divorce came from two directions, we said that our worries about divorce came from two directions. One concerned the unmanly divorces arising from the faithless and callousness of a section of men. The other is the unmanly refraining from divorcing a wife by those men with whom there is no hope reconciliation. They restrain themselves from divorcing only so as to persecute the woman, and not so as to take advantage of such time to reach a compromise. In the two previous chapters we have discussed the first category. We said that Islam welcomes all means that may serve as an obstacle to unmanly divorce, and it has itself endeavored by special contrivances to see that divorces of this description do not place. Islam is only against the use of force for the continuation of the union of marriage. From what has been said it is evident that a family is a living unit, and that Islam endeavors that this living unit should continue to live. Nevertheless, when the living entity expires, Islam regards it with regret ad issues the permission to bury it; but Islam is not ready to mummify its dead body with the balm of law, and does not approve of the idea that with this mummified body there should be a display of p: 352 feigned liveliness. The reason is now intelligible why a husband has the right of divorce. The association of married life rests upon the pillar of spontaneous attachment and has a unique mechanism. Creation has given the key to strengthening it, and also the key to bringing it down and shattering it, into the hand of man. Under the command of creation, every woman and man has a certain disposition and certain characteristics, when compared with each other, which cannot be exchanged and are not the same. This disposition and these distinctive characteristics are by themselves the root- cause of many things and one of these things is the right of divorce. In other words the source if this situation is the particular and distinctive role of both man and woman in love and in their search for a mate, and nothing else. The right of divorce arises from the particular role of the man in the matter of love, and is not based upon his ownership: From here you can have some idea of the worth of the propaganda of elements that are against Islam. These elements sometimes say that the cause of the giving of the right of divorce to men in Islam is that it does not acknowledge women as having the capacity to will, to desire or to want. It considers them in the category of material things and not persons. Islam considers man to be the owner of woman, and naturally, according to the law “ an- nas musallatuna ‘ ala amwalahum( ” people have mastery over their property) it gives them the right to discard his property at any time he may wish to. it p: 353 is clear that the logic of Islam is not based upon man’ s ownership and woman’ s status of being owned. This much is evident, that the rationale of Islam is too deep and too far above the level of comprehension of these writers. Under the guiding light of revelation, Islam has realized the secrets of the foundation and structure of the family and family- life to which learning and science, after a lapse of fourteen centuries, is trying to approach. Divorce is a release in the same way as the inherent nature of marriage is dominance: Sometimes these people ask“ : Why does divorce take the form of a release, an emancipation? Surely it should have a judicial form” . To these people it should be said“ : Divorce is a release in the same way that marriage is a state of dominance. If you can possibly do so, change the natural law of seeking a mate in its absoluteness with regard to the male and the female, remove the natural state of marriage from the condition of dominance; if you can make the role of the male and female sex in all human beings and animals identical in their relations, and change the law of nature. Then you will be able to rid divorce of its aspect of release and emancipation” . One of these people writes“ , Generally, the Shi’ ite jurisconsults count the contract of marriage as an irrevocable contract, but I wish to say that the contract of marriage, according to Islamic jurisprudence and the Civil Law of Iran is irrevocable only in relation to woman. As far as man p: 354 is concerned it is revocable contract, for he can any time make the above contract ineffective and breaks the marriage pact” . Afterwards he writes“ , The contract of marriage is revocable as far as man is concerned, jut as far as woman is concerned it is irrevocable. This is an injustice of the law that has made woman a captive of man. Whenever I read the wordings of sec. 133 of the Civil Law of the Royal Land of Iran ( law of the right of man to divorce, ) I feel ashamed in front of Iranian women, in front of these schools and colleges and this age of atoms, satellites and democracy” . This gentleman, first of all, could not understand a very simple thing. That is that divorce is different from the dissolution of marriage. When it is said that the contract of marriage in its essence is irrevocable, that means neither the husband and wife ( with the exception of special cases) has the right to dissolve it. If a marriage is dissolved, all its consequences are nullified and it be comes a nullity. When in special circumstances a marriage is dissolved, all its consequences, including dower are eliminated. The woman then has no right to demand it. Likewise, there is no question of maintenance for the period of ‘ iddah. In contrast to this is the case of divorce, in which the relation of conjugality is broken up, but the consequences of the marriage contract are not absolutely eliminated. If a man marries p: 355 a woman and agrees to a dower of five hundred thousand tumans and after one day’ s married life wants to divorce that wife, he must pay the whole amount of the dower and, over and above that, maintenance for the period of ‘ iddah. If a man, after the marriage contract, but before the consummation of marriage, divorces his wife, he must pay half the amount of the dower, and, because a woman thus divorced is not bound by ‘ iddah, maintenance for that period is out of question. So it is clear that divorce is not able to nullify all the consequences of the marriage contract; but in the case where the marriage is dissolved, the woman has no right to claim the dower. It is thus evident that divorce is different from dissolution. The right of divorce being with the husband does not make marriage incapable of being an irrevocable contract. Islam has acknowledged two things: dissolution and divorce. The right of dissolution obtains in such cases where there may he some defect in the man or in the woman. This right is given to the man and also to the woman as opposed to the right of divorce. The occasion for divorce is on the death of family life, and this right exclusively belongs to the husband. The fact that Islam has made a distinction between the category of dissolution and the category of divorce and has laid down different regulations for each of them, shows that the fact p: 356 that the power of divorce has been given to man does not arise from the intention of Islam to favour man with a privilege. To the above- mentioned gentleman it should be said that, so that they need not feel ashamed in front of the schools, colleges and satellites, it would be a good idea for them to take the trouble of receiving a little education and learning something for once. They may then be able to differentiate between dissolution and divorce, and they may also become acquainted with the deep and subtle philosophy of Islam concerning society and family life. In this way, they would not feel ashamed in front of schools and colleges, but rather they would be able to pass them by holding up their heads. However, we are sorry to say that ignorance is a totally incurable disease. Penalty for divorce: In some of the world’ s legal systems they used to impose a penalty for the prevention of divorce. I do not know whether there exists any such law as this in the world at present or not. Nevertheless, records show that in the Holy Roman Empire penalties were imposed on husbands who divorced their wives for no good reason. Obviously this is another manner of resorting to force but it is not effective. Wife having the right of divorce as an entrusted right At this juncture it is necessary to mention one thing. Up to this time all our discussion has been about the fact that divorce is a natural right peculiar to man. Nevertheless, a man can give p: 357 his wife the right of divorce as an absolute attorney, or in special circumstances on his own behalf. This is something else which according to Islamic jurisprudence is, acceptable, and the Civil Law of Iran has also explicitly mentioned it. By the way, so that the man may not waive his appointing of an attorney, and so that he may not deny the ceding to the woman of this right, that is, so as to give it the form of an irrevocable attorneyship, an attorneyship of this description is usually concluded by the contrivance of making it a binding condition in the marriage contract. According to this condition, the woman may unconditionally, or in special circumstances that have been specified beforehand, divorce. In this way, from the olden times, those women who had a cause to be anxious about some aspects of their future husbands, kept the right of divorce, secure in their hands in the form of a binding conditions contained in the marriage contract, and made use of it when absolutely necessary. Thus, in the view of Islamic Law, a woman has no inherent natural right of divorce, but as a stipulatory right, namely in the form of a condition contained in the marriage contract, she may have that right. Clause 1119 of the Civil Law lays down“ : The parties to the marriage contract may put forth any condition that is not inconsistent with the named contract in connection with the marriage contract or some other binding contract. p: 358 For example, there may be the condition: whereas the husband marries another wife, or disappears for a certain period, or ceases to maintain his wife, or has evil intentions against the life of his wife, or develops a bad character so that their life together become unbearable, the woman is an attorney and can appoint an attorney so that after the establishing of the condition in the law- court and before the legislature, she may consider herself divorced” . As you see, the thing which is all the time repeated, that, in the view of Islamic law and the Civil Law of Iran, divorce is a one- sided right and is absolutely denied the woman, is just not true. In the view of Islamic law, and also according to the Civil Law of Iran, the right of divorce as a natural right is not meant for the woman, but as stipulated and conferred right it can exist, and can be made use of by her. Now we have arrived at the stage where we can take up the second part of our subject, namely the cruel and unmanly refusal of certain men to divorce. We have to see whether Islam has provided some way for the solution of this difficulty which is really a very problematic situation. We shall discuss this subject under the heading of ‘ Judicial Divorce’. Meanwhile, we mention our regret that our discussion of the first part has become so long. 
Judicial Divorce
point By judicial divorce we mean a divorce which p: 359 is obtained through a judge and not through the husband. In many of the world’ s systems of law, the authority of divorce is altogether in the hands of the judges. The judiciary is the only forum which can adjudge the plea of divorce and the dissolution of marriage. Under those laws all divorces are judicial divorces. In our previous sections, by taking note of the spirit of the union of marriage and the purpose in setting up a peaceful family environment, and also by keeping in view the position and status that a wife should have in the family milieu, we clarified the invalidity of this approach. We have submitted our reasons, and have shown that divorces which culminate through the natural course of events and as a result of these events cannot depend upon the decision of a judge. The question a present is whether, in the view of Islam, a judge ( qadi- ) with all the strict and stringent necessary attributes that Islam has prescribed for him - has no right to give a divorce in any case, situation or circumstances. Or whether under certain special conditions that right does devolve on him, however exceptional or rare those cases might be. Divorce is a natural right of man, provided that he behaves in a normal manner towards his wife. The normal behavior of a husband towards a wife is that, if he likes to live with his wife he should look after her properly, respect her rights and p: 360 behave with love towards her. In case there is no way in which he can continue to live with her, he should courteously and kindly divorce her, i. e, . he should not abstain from divorcing her. He should pay what is due to her, and something over and above that as an expression of gratitude: قَدَرُهُ الْمُقْتِرِ وَعَلَی قَدَرُهُ الْمُوسِعِ عَلَی وَمَتِّعُوهُنَّ Yet make provision for them, the affluent man according to his means, and according to his means the needy man ( 2: 236). And inform her about the termination of their relationship as husband and wife. However, if the husband does not act according to the normal code of behavior, what should be done? We mean to say that we come across a man who does not wish to live with his wife, who neither behaves in a congenial manner nor provides a happy and Islamic environment for the family, nor even sets the wife free to her own fate, who in other words, neither cares to perform the responsibilities of married life, nor cares to take measures to create suitable situation for his wife, nor even consents to divorce his wife, in such circumstances what is to be done? A normal divorce is similar to a normal childbirth, which makes natural progress by itself, but a divorce from a man who neither performs his duties as a husband nor consents to divorce his wife is similar to an unnatural and abnormal birth in which, with the help of a doctor and p: 361 a surgeon, the new child has to be delivered.

Whether some marriages are a cancer which the wife must suffer and put up with: Now let us see what Islam says about this kind of divorce and this kind of man. Does it still say that the matter of divorce depends completely upon the will of the husband? If this kind of man does not agree to a divorce, should the wife suffer and put up with it? Does Islam helplessly wash its hands before each of them and observe this cruel position from a far? The belief of the majority of jurisconsults is the same. They believe that there is no remedy for this in Islam. As if this is a sort of cancer, and as if, by chance, some individuals are made a victim of it and there is no remedy for them. The woman must grin and bear it till eventually she meets her end. In my own opinion this way of thinking is absolutely in consistent with the accepted principles of Islam, the religion which always declares its belief in justice“ , qiyam bi- qist( ” the upholding of justice, ) that is, which considers that the real and the basic purpose of all the prophets of God was to maintain and uphold justice: قَدَرُهُ الْمُقْتِرِ وَعَلَی قَدَرُهُ الْمُوسِعِ عَلَی وَمَتِّعُوهُنَّ Indeed, We sent Our Messengers with the clear signs, and We sent down with them the Book and the Balance so that men might uphold justice( . Qur’ an, 57: 25) So, how is it possible that for such a clear and glaring justice as this no remedy has p: 362 been provided. As if it is possible that Islam has arranged its laws in such a way that as a result of them a miserable person would suffer like terminal cancer patient. It is regrettable that some individuals, in spite of their admission and acknowledgement that Islam is the religion of justice, and in spite of counting themselves as followers of the doctrine of justice, express an opinion like this. If it is agreed that we can ascribe an unjust law to Islam under the excuse of ‘ cancer’, there can be no grounds for raising an objection to some other peoples oppressive law which excuses itself as a ‘ tetanus’, and someone else’ s law which counts itself as tuberculosis’, and someone else’ s as ‘ paralysis’, and another’ s’ on some other pretext and their excuses should therefore be acceptable. If it is really like this, what about the principle of justice which is the foundation stone of Islamic legislation, and what about the establishment of justice which was God’ s main purpose in sending the prophets. They say ‘ cancer’, I say all right, let it be cancer. But if a patient suffer, from cancer, and minor operation, if promptly done, can cure the patient, what then? A woman submits herself to a man as a partner for life, and afterwards there is a change in the state of affairs, the circumstances take such a turn that the husband takes undue advantage of his authority and also refuses to divorce her. He takes this step p: 363 only to prevent her from marrying some suitable man, and not so as to live with her thereafter amicably as husband and wife, and leaves her, in the words of the Qur’ an, like someone hanging on. No doubt, such a woman is confined like a cancer patient, although, as a matter of fact, she suffers from a kind of which can be cured by means of a minor operation. The patient can become well, and can completely recover, by means of a minor operation. This kind of operation is possible at the hands of competent religious authorities and judges. As we pointed out in our previous articles, one of the two difficult problems in our society is the abstention of a section of merciless men from divorce, and this act of severe cruelty they commit in the name of and under the pretext of religion. These cruelties are the outcome and an offshoot of a wrong conception of Islam, which, according to them, says“ ; A woman must bear such cruelties like a terminal cancer patient” . This has created an impression of Islam which is more harmful than any of the evil propaganda against our faith. In spite of the fact that the arguments concerning this matter are of a rather technical and a specialized nature and are somewhat out of place in these articles, I think it worthwhile to examine the factors surrounding this subject. My object is to show the pessimists that what Islam really says is different from the p: 364 above nonsense. Deadlocks: Such deadlocks as this are not limited to matters of marriage and divorce. In other spheres of life, say, in money matters, situations like this present themselves. Firstly, let us see what Islam has done in matters other than marriage and divorce as regards certain difficult situations. Did it leave them as deadlocks and as irremediable phenomenon, or did it disregard the idea of a deadlock, and find a remedy? Suppose two individuals get the right of ownership by succession or by some other way to an indivisible property like a jewel or a ring, or an automobile, or a rare painting, and do not agree to make use of it in partnership. Neither of them agrees to the suggestion that the property should remain for sometime with one of them and for sometime with the other. Neither of them is prepared to sell his share to the other partner. Thus, they do not arrive at any mutual agreement about making use of that thing. Also we know that if one of them makes use of it, it depends upon the permission and consent of the other. Now, what should be done in situations like this? Should that property be left alone without being used and the matter be left as too complicated and insoluble? Or has Islam provided a remedy and a solution for situations like this? The fact is that Islamic jurisprudence does not leave a problem like this as insoluble. When there is a case p: 365 of property not being used and going to waste, Islam does not acknowledge the inviolability of the right of ownership and possession. In cases like this Islam allows the religious authority to deal with it as a matter of social welfare, to take his decision on it as problem of dispute, despite the will and obstinacy of the owners, and to make the correct arrangements. For example, the article in question may be rented out, and the rent may be divided according to their shares; or the property may be put up for auction and the sum received may be shared between them. Anyhow, it is the duty of the religious authority or the judge as “ wali- e mumtani[ ’” 1] to make proper arrangements. The owners of the property may agree or may not agree; it is immaterial. Why is the right of ownership, which is a legal right, not kept in view? For the good reason that another basic principle is being taken into account. The principle of preventing property from going to waste and lying unused. Regard for ownership and possession by the owners is to be observed, as long as that right does not lead to the waste of property and wealth. Suppose that the disputed item is precious stone or a sword or some other thing like this; and that neither of the owners is prepared to sell his share to the other partner; but suppose that each of them agrees to break the item into two, and p: 366 each one is ready to accept half of it as his share. It means that they have gone to such a limit in their begrudging and ill- will that they are prepared to render the property worthless and spoil it. It is obvious that a precious stone, or a sword, or an automobile, when is broken into two, becomes useless. Does Islam allow this? No. Why not? Because this is a waste of property. ‘ Allamah Hilli[ , 1] one of the most celebrated jurisconsults in Islamic history, said“ : If they want to do an act like this, the religious authority should prevent them from taking this step. The assent and agreement of the owners of the property is not enough for them to be allowed to do something like this” . The deadlock of divorce: Now let us see what is to be done in the problem of divorce. If the man has an incompatible attitude and does not grant those rights and perform those duties, which he is bound by Islam to do, what is to be done? Some of those duties are financial ( maintenance). Some of them are moral ( courteous behavior, ) and some concern sexual matters ( the right of sexual relations and intercourse, ) If he does not grant these rights and fulfill these responsibilities, or some of these responsibilities, and, in spite of that, is also not prepared to divorce the wife, what course is to be adopted. Does the maxim of ( asl- e lazim‘ ) priority of the principle’ or ( mawrid- e ahammiyati‘ ) the matter of priority’ apply p: 367 in this case so that Islam can allow the religious authority or the judge ( qadi) to take proper steps, in the same way as it allowed them in the matter of property; or does that maxim or principle not apply here?
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[1]: “wali-e mumtani” (the guardian of withheld rights) is the name for the religious authority in his position as the restitutor of a right which one person claims from another when the latter will not give that right. 
[1]: Jamalu’d-Din Hasan ibn Yusuf ibn ‘Ali ibn al- Mutahhar al-Hilli (648/1250 — 726/1325). Apart from his studies in law, theology and usul (principles of faith) , he also studied philosophy with Nasiru’d-Din at-Tusi, whose Tajrid he commented on (Sharh Tajrid al-i’tiqad). He wrote more than 500 works altogether. His move to Iran in 708/ 1305 and conversion of the Il-Khanid of Iran from Sunnism to Shi’ism was one, of the, factors in determining Shi’ite Islam as the official religion of Iran.

View of Ayatu’ llah Hilli: Hence forward I would I would like to place this discussion in the hands of one of the first rank jurisconsults of our time, Ayatu’ llah Hilli, who lived in Najaf[ . 1] This illustrious jurisconsult has given his view on this subject in a book called Huququ ‘ z- zawjiyyah ( Conjugal rights). The summary of his opinions in so far as they are related to the rights of women and limitations on men are as under: “ Marriage is a sacred contract and is at the same time a kind of partnership between two persons, and this brings about a series of contracts between the two of them. The peace and prosperity of each one of them depends only upon compliance with the terms of those contracts. Moreover, the prosperity of society as a whole also lies in their prosperity and the performance of the terms of the contracts concluded by each one of them. “ The main rights of the wife are maintenance, dress, sexual relations and intercourse as husband and wife with courteous behavior. If man neglects to perform his duties towards his wife, and also abstains from divorcing her, what is the proper course for the wife to pursue, and how should the husband be dealt with? “ In eventualities like this, two p: 368 courses become incumbent. One course is that the religious authority should have the right to intervene and by granting a divorce settle the matter for good. The second course is that the wife herself should, in the same way as the man, refrain from performing and complying with her part of the contract. “ Now, regarding the first line of action, namely, the intervention of the religious authority, let us see under what principle and on what grounds the religious authority has the right to intervene in situation like this. ‘ The Qur’ an in surah al- Baqarah ( The Cow) makes the following commandment: بِإِحْسَانٍ تَسْرِیحٌ أَوْ بِمَعْرُوفٍ فَإِمْسَاکٌ ۖ مَرَّتَانِ الطَّلَاقُ Divorce is twice; then honourable retention or setting free kindly ( 2: 229) And again in surah al- Baqarah it is ordained: نَفْسَهُ ظَلَمَ فَقَدْ ذَٰلِکَ یَفْعَلْ وَمَنْ ۚ لِتَعْتَدُوا ضِرَارًا تُمْسِکُوهُنَّ وَلَا ۚ بِمَعْرُوفٍ سَرِّحُوهُنَّ أَوْ بِمَعْرُوفٍ فَأَمْسِکُوهُنَّ أَجَلَهُنَّ فَبَلَغْنَ النِّسَاءَ طَلَّقْتُمُ وَإِذَا “ And when you divorce women, and they have reached their term, then retain them honorably or set them free honorably; and do not retain them by force, to transgress; whoever does that has wronged himself ( 2: 231) “ From these verses a general principle can be deduced and that is that every man in family life should make a choice between two alternatives: either he must fulfill all rights and perform all duties politely (‘ honourable retention’) or break the tie of the union and set the woman free (‘ setting free kindly’) Any third possibility that he may neither give her rights properly and politely nor p: 369 divorce her, is not known in Islam. The phrase: And do not retain them by force to transgress negates this very possibility. “ It is not unlikely that the above phrase may connote a general rule; that is, it may include those cases when a husband intentionally and out of negligence makes the life of his wife difficult and miserable, and it may also include those cases where, in spite of the husband not being at fault intentionally, as far as the matter of honourable retention is concerned, there is nothing but loss and hurt for the wife. “ Although these verses were revealed in connection with the period of ‘ iddah and the revocation of divorce or its non revocation by man, and throw a light upon the proper course of action for him, yet he is advised that the revocation must be with the intention of behaving considerately and looking after the wife and not of harming or hurting the poor woman. Nevertheless, it is not limited exclusively to that occasion. It lays down a general principle, and lays down the rights of a wife for all times and in all conditions. It signifies that a husband should choose for himself one of the two above- mentioned alternatives, and that there is no third course possible for him. “ Some juristconsults are involved in an error at this very juncture, and have thought that these verses are exclusively about those men who want to revoke the divorce within the period of ‘ iddah. No, that is p: 370 not so. These Verses shed a light on the duties of all husbands in all circumstances, in respect of their wives. Our argument concerning this, besides the sequence and trend of the verses is that the Holy Imams have expounded and cited these verses on occasions other than ‘ iddah. For example, Imam al- Baqir ( a. s) . said, concerning a man who makes a vow of “ ila( ’” which means that somebody declares on oath that he will not have sexual relations with his wife for four months or more) that he must, after the four months have passed, either break his oath and make atonement, or else he must divorce his wife, for the good reason that God commands, honourable retention or setting free kindly. “ On another occasion, when a man had appointed another man as his attorney to make a marriage contract with a woman on his behalf and to fix a dower, the attorney complied with the request but the man who had appointed him as his attorney afterwards denied having given him that authority. Imam as- Sadiq ( a. s) said that for that woman there was no obstacle to her choosing another husband. Nonetheless, if that man had really made another person his attorney and the marriage that took place was through a rightful attorney, the who appointed the attorney must, for the sake of God, divorce that woman and must not let her go without a divorce. The Imam said‘ , because God in the Qur’ an commands: then honourable retention or setting p: 371 free kindly’. Thus, it is clear that the Holy Imams pave treated this verse as a general principle, and not limited it to specific occasions. “ When a man neither performs the duties which he must perform as a husband, nor divorces his wife, the religious authority should call the husband. Firstly, he should ask him to divorce his wife. If he does not divorce her, the religious authority should divorce them. In a tradition, related by Abu Basir, Imam as- Sadiq ( a. s) . said‘ , If there is anyone who has a wife and does not arrange for her dress and does not provide her maintenance, it is obligatory on the leader of the Muslims to enforce a separation between them ( through divorce’” ). This was a very short summary of the views of a contemporary first- rank jurisconsult. Anyone who wants to study his views in detail may go through the book Conjugal Rights, which is a compilation of his lectures for his students. As you have seen, the phrase retention honorably or setting free kindly is a principle and a general rule in the frame of which the Holy Qur’ an has inscribed the rights of wifehood. Therefore, under this principle, and in accordance with the emphasis with which the phrase and do not retain them by force to transgress is ordained; husbands are not allowed in any case to take undue advantage of their authority. A man is not allowed to keep his wife by force if he has no intention of living amicably p: 372 with her and only wants to keep her in distress and prevent her from marrying another man.
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[1]: The centre of Shi’ite religious education in Iraq and the resting place of Imam Ali (a. s). (Tr. ).

Other arguments and citation: Besides, the references and arguments which have been mentioned in the book Conjugal Rights there are other, more convincing arguments and references to support our viewpoint. On the strength of those arguments we arrive at the conclusion that in the view of Islam the Qur’ anic phrase retention honorably and setting free kindly is a general and absolute principle. Within that framework the rights of women can be read and should be observed. The more a man studies the pros and cons of this point, the more clear he will find it, and the more intensely he will realize the soundness of the regulations of the sure religion of Islam. In al- Kafi, vol. 5, p. 205, Imam as- Sadiq ( a. s) . is quoted as saying: بِإحسان. تسریحٍ أو بِمعرُوفٍ إمساکُ الله: أخذ الذی بالمیثاق أقررتُ فلیقُل: المرأة یتزوَّج أن الرجُل أراد إذا Which means that whenever a man wants to marry a woman he should say: “ I acknowledge the promise which God has taken from me that I will retain the woman honorably or shall set her free with kindness” . In verse 21 of Surah an- Nisa in Holy Qur’ an it says: غَلِیظًا مِیثَاقًا مِنْکُمْ وَأَخَذْنَ بَعْضٍ إِلَیٰ بَعْضُکُمْ أَفْضَیٰ وَقَدْ تَأْخُذُونَهُ وَکَیْفَ How shall you take it, when each of you has been privily with the other, and they have taken from you solemn compact? The Sh’ ite and Sunni commentators both agree that by ‘ solemn compact’ is meant the same covenant that God has p: 373 taken from men with the phrase: retention honorably or setting free kindly, This is the same promise about which Imam as- Sadiq ( a. s) said that, on the occasion of marriage, the man should promise and acknowledge: retention honorably or setting free kindly. There is a well- knowing hadith of the Prophet which he said on the occasion of his last hajj ( hajjatu ‘ l- wida ‘) and which the Shi ‘ ah and Sunni have both related: الله بِکلمة فُروجهُنَّ واستحللتُم الله بِأمانة أخذتُمُوهُنًّ فإنکُم النساء فی الله إتقوا “ O people! Keep Allah in mind and fear Him in respect of women, because you have taken them as trust from Allah and you have made lawful their chastity for yourselves by the word of Allah” . Ibn al- Athir [ 1] in Kitab an- nihayah said“ : by word of Allah”, which the Holy Prophet said, and by which the chastity of women becomes judicial, is the same as that which is expressed in the Qur’ an by the phrase: retention honorably or setting free kindly. The view of Shaykh at- Tai’ ifah: Shaykh at- Tai’ fah at- Tusi [ 2] in the book Khilaf, vol. 2, p. 185 after expressing his view regarding ‘ impotence’, said that after it is proved that a man is impotent, the wife has the right to dissolve the marriage and there is consensus of opinion of the learned on this point. At that juncture he said“ : and also it has been argued on the grounds of the verse retention honorably or set her free kindly, that, because an impotent man is unable to retain his wife honorably and properly, he p: 374 should set her free” From all this it can be understood for certain that Islam never allows a deceitful man to take undue advantage of the right of divorce, and retain a woman as a prisoner. However, from what has been said it should be understood that not everyone who calls himself a qadi has the right to interfere in matters like this. In the eyes of Islam, there are very serious and stringent conditions to fulfill to be eligible and to be competent as a qadi However, this is not the occasion to define and explain them. The other point which requires due attention is that from the Islamic standpoint, in spite of all Islamic efforts to maintain the peace of the family, the occasion for judicial divorce only occurs in very rare, exceptional and uncommon cases. Islam never allows divorce to take the form which it has taken in Europe and America, examples of which we read daily in the newspapers. For example, a wife complains and demands a divorce from her husband on the ground that he does not appreciate the film which she likes most, or that her husband does not kiss Fifi, her dear dog, or other ludicrous matters like this, which are manifestations of the breakdown of human values. The worthy reader will, we hope, have fully understood, by what we have said in these few articles, the points which we raised and set down to be thought over at the beginning of our section. In p: 375 this section we have detailed five points regarding divorce the following order: 1. The unimportance of divorce and the lifting of all moral and social checks and hindrance from control over divorce. 2. The concept that all marriages are eternally binding, and that divorce is not permissible for any reason( . The view of the Catholic Church) 3. That marriage can be terminated by the man, but not by the woman in any circumstances. 4. That marriage should be terminable by the man as well as by the woman under special conditions, and that the way to put this into practice should be one and the same for both of them. 5. That recourse to divorce should be open for man and for woman too. It should not be altogether barred, but the door by which the husband should come out of the marriage should be is different from the door for the wife. We have said in this section, that Islam approves the fifth viewpoint. From what we have said regarding the conditions at the time of the conclusion of the marriage contract and also on the subject or judicial divorce, it is, we hope, clear that, although Islam does not recognize divorce as taking the form of a natural right for woman, yet it has not altogether barred the way for her and has provided special doors for her. On the subject of judicial divorce, we could have said more in the light of the guidance of the Imams and the jurisconsults of all the p: 376 sects of Islam, and how, according to those views, laws are enforced in all the countries of Islam. Anyhow, we think that what we have said in these articles will suffice.
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[1]: Abu’s-Sa‘adah Majdu ’d. Din al. Mubarak ibn al-Athir (544/1149-606/1210) worked in Mosul for its ruler and compiled a collection of sayings and acts of the Holy Prophet called an-Nihayah fi gharibu ’l-hadith wa ’l-athar. 
[2]: Shaykh at-Ta’ifah Abu Ja‘far Muhammad ibn al-Hasan ibn ‘Ali at-Tusi (385/995- 460/1076). The greatest Shi’ite jurisconsult of the 5th / 11th century, whose title, Shaykh at-Ta’ifah means “the Chief Scholar of the Shi’ite Sect. ” His book Kitab al-khilaf fi’l-fiqh is a comparison of the difference sects of Islam in the domain of jurisprudence.