Sex, Marriage and Family in World Religions (45 page)

leave the premises of the house at day or at night without a valid reason till the waiting period is fully completed as God recommended, but, if she does, her waiting period is still valid.

Of the verse “unless they come up with an evidenced sin
(fahishah),
” Ibn Abbas said, “If they are proven guilty of adultery, then they should leave.”

[Al-Razi,
Tafsir al-Fakhr al-Razi,
30:31 (12th century ce)]

Document 3–89

m u w a f f a q a l - d i n i b n q u d a m a h

Overall, if a woman dislikes her husband for his physical appearance, moral behavior, lack of religiosity, age, or weakness, or any other matter of the sort, and in that she fears that she will not be able to fulfill her duties as a wife, she may seek
khul’
by buying her way out of the marital relationship as stated in the verse “and if you fear that they will not uphold God’s commands.” There is no blame on them in what she gives up to free herself.

[Muwaffaq al-Din Ibn Qudamah (d. 1223),
Al-Mughni
(The Enricher) (Beirut: Dar al-Kitab al-‘Arabi, n.d), 18:173 (12th century ce)]

Document 3–90

m o h a m e d s a l i m e l - a w a

I would like to point out that the divergence in opinions between supporters of the new reform35 and its opponents does not revolve around the legitimacy of
khul’,
for everybody agrees on it, and all jurisprudential books have dealt with it. The divergence is rather on whether it is permissible to force the husband to accept this divorce or not, or whether it is acceptable to give the judge the authority to pronounce it, and finally on the consequences of a
khul’
sentence as stated by the aforementioned legislation.

Giving the judge the authority of imposing
khul’
is a controversial matter in Islamic jurisprudence. The opinion of the majority of scholars including the four imams36 is that
khul’
occurs between the spouses without the judge’s intervention. The second opinion, which states that the judge can intervene, is that of . . . (various) noble Successors
(Tabi’in)
37 . . .

Stating that
khul’
occurs without the judge’s intervention means that spouses have to reach an agreement. The question is, what happens when they fail to do so? In this case there is no other solution for the women who dislikes her husband but to go to court, this is why the
Tabi’in
said, “The judge has the authority to impose
khul’
” . . .

When a man hates his wife, he can divorce her, although most men do not do so, and when a woman hates her husband she can use
khul’
to leave him.

If the husband accepts
khul’,
then so be it, but if he does not the judge may 206

a z i z a h a l - h i b r i a n d r a j a ’ m . e l h a b t i intervene and pronounce a one-time final
(ba’in)
divorce against the husband’s will. This divorce is final
(ba’in)
because the wife gives back to her husband the
mahr
he had given her so that she can leave him. Therefore, the husband does not have the right to revoke this divorce, otherwise it becomes pointless.

[El-Awa, The Project of the Personal Status Legislation,
al-Ahram,
no. 41314, January 17, 2000]

Document 3–91

Divorce, defined as the dissolution of marriage, shall be a prerogative that can be exercised equally by the husband as by the wife, in accordance with Islamic legal rulings for each party, and under judicial supervision. Thus, the husband’s misuse of repudiation shall be limited by specific restrictions and conditions.

This will be in conformity with the
hadith
of the Prophet, peace and blessings upon him, which says, “The most hateful to God, of all lawful things, is divorce.” For this purpose, mechanisms for reconciliation and mediation, through the family and the judge, shall be strengthened.

If divorce is in the husband’s hands, the wife has also the right to it through
tamleek
(the right of option).38 Whatever the case, and before the divorce is authorized, it shall be ascertained that the divorced woman gets all the rights to which she is entitled.

A new procedure for divorce has been established, requiring the court’s prior authorization. Divorce cannot be duly registered until it is established that the husband has paid in full all alimonies owed to his previous wife and children.

Verbal repudiation, in exceptional cases, shall not be considered valid.

[King Mohamed VI of Morocco, speech to the Parliament fall session, 10 October 2003]

SEXUAL ETHICS

The Islamic view of sexuality is based on the ideal of establishing equilibrium between spirituality and the fulfillment of earthly desires and needs. This goal is achieved through a complex moral and legal system aimed at both sexes, which manages the community’s sexual needs and social interaction. Sexuality is based on the concept of harmony of the sexes and aims at achieving a state of completeness of the spouses.39 When the sexual act occurs within legitimate bonds, pleasure becomes a recognized right for both spouses and does not generate any guilt. This also means that the satisfaction of physical desires and procreation may take place only within the framework of legitimate marriage.

Chastity is highly praised in the Qur’an (17:32) and rules are set to prevent natural desires from leading to unlawful behavior.40 However, some zealous
Islam
207

jurists went very far in establishing strict and hermetic boundaries between the two sexes, severely restricting their interaction, and turning the general principle of modesty into a requirement of almost total seclusion for women. In this regard there are extensive debates in Islamic jurisprudence over the appropriate boundaries for female presence in the public sphere, the extent to which the female body may be revealed, and whether the female voice is
‘awrah
41 or not.

In this same spirit, premarital as well as extramarital sex
(zina)
are considered grave sins, are subject to condemnation, and both men and women are severely and equally punished for engaging in them (Q. 24:2–9). In this Islam shares the same views as other Abrahamic religions. The rather harsh treatment of
zina
in Islam should be considered in light of the moral system articulated by the Islamic faith. It must also be understood within the context of the Islamic social system based among other things on relationships of blood and kinship (as reflected for example in laws of inheritance and marriage). We also need to bear in mind that the punishment for
zina
cannot be meted out unless highly demanding due process requirements are met. For example, the establishment of guilt requires the testimony of four reliable eyewitnesses, all of whom saw the actual act of intercourse at the same time and in the same place between two clearly identifiable parties. This strict due process requirement is quite challenging because of the privacy rule, which is stated in the same chapter as the ruling on
zina,
and because of the fact that if any of the witnesses recant prior to the verdict, all four witnesses will become severely punishable for slandering the accused couple.42 It is important to note that the Qur’anic evidentiary requirements for
zina
were initially intended to protect women from frivolous charges, even when those charges come from their own husbands (Qur’an, 24:4–9). Needless to say, husbands or other relatives who kill women for engaging in
zina
(honor killings) commit acts of murder punishable under Islamic law.

The Islamic position toward homosexuality is similar to that of the other Abrahamic religions. It is based on the story of Lut, which also appears in the Qur’an (see below). Because of the wording of the verse, many jurists concluded that the punishment for
zina
applied to male homosexuals, but not to lesbians who were assigned a lesser punishment. Again, homosexual acts are subject to the same due process requirements of
zina
and are entitled to the same privacy protections. Thus it would be almost impossible to establish a sex-related violation short of committing a prohibited act in the public square or insisting on a public confession feely and knowingly.

Finally, the great importance given to regulating sexuality in the Muslim world expresses a legitimate concern to apply as faithfully as possible the commands of God. However, cultural and patriarchal influences that look down at women and consider them the ultimate source of temptation for men and a potential source of shame for their families have had disastrous repercussions on women’s lives, as is the case in honor killings and female circumcision, 208

a z i z a h a l - h i b r i a n d r a j a ’ m . e l h a b t i which are practices that are unfortunately widespread in some Muslim as well as non-Muslim countries.

Document 3–92

q u r ’ a n 3 3 : 3 5

For Muslim men and women, for believing men and women, for devout men and women, for true men and women, for men and women who are patient and constant, for men and women who humble themselves, for men and women who give in charity, for men and women who fast (and deny themselves), for men and women who guard their chastity, and for men and women who engage much in God’s praise—for [all of] them has God prepared forgiveness and great reward.

[Al-Ahzab, The Coalition, Abdullah Yusuf ‘Ali,
The Meaning of the Holy Qu’ran
(MD: Amana, 1991)]

Document 3–93

q u r ’ a n 1 7 : 3 2

Nor come nigh to adultery: for it is a shameful (deed) and an evil, opening the road (to other evils).

[Al-Isra’, The Night Journey, Abdullah Yusuf ‘Ali,
The Meaning of the Holy Qu’ran
(MD: Amana, 1991)]

Document 3–94

q u r ’ a n 2 4 : 2 – 9

The woman and the man guilty of adultery or fornication, flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by God, if you believe in God and the Last Day: and let a party of the Believers witness their punishment. . . .

And those who launch a charge against chaste women, and produce not four witnesses (to support their allegations), flog them with eighty stripes and reject their evidence ever after: for such men are wicked transgressors unless they repent thereafter and mend (their conduct); for God is Oft-Forgiving, Most Merciful.

And for those who launch a charge against their spouses, and have (in support) no evidence but their own, their solitary evidence (can be received) if they bear witness four times (with an oath) by God that they are solemnly telling the truth.

And the fifth (oath) (should be) that they solemnly invoke the curse of God upon themselves if they tell a lie.

Islam
209

But it would avert the punishment of the wife, if she bears witness four times (with an oath) By God, that (her husband) is telling a lie.

And the fifth (oath) should be that she solemnly invokes the wrath of God on herself if (her accuser) is telling the truth.

[Al-Noor, The Light, Abdullah Yusuf ‘Ali,
The Meaning of the Holy Qu’ran
(MD: Amana, 1991)]

Document 3–95

q u r ’ a n 4 : 3 4

Therefore the righteous women are devoutly obedient,43 and guard in (the husband’s) absence what God would have them guard.

[Al-Nisa, The Women]

Document 3–96

q u r ’ a n 7 : 8 0 – 8 1

We also (sent) Lut; He said to his people “Do you commit lewdness such as no people in creation (ever) committed before you? For you practice your lusts on men in preference to women; you are indeed a people transgressing beyond bounds.”

[Al-‘Araf, The Heights]

Document 3–97

A man came to the Prophet, and said, “My wife does not repel the hand of any man who touches her.” He said, “Divorce her.” The man then said, “I love her.” He said, “Then enjoy her.”

[Hadith narrated by Abdullah Ibn Abbas, in Abu Dawud,
Sunan Abu-Dawud,
bk. 11,
Kitab al-Nikah,
no. 2044 (9th century ce)]

Document 3–98

Sa’d ibn Ubadah asked, “Messenger of God, if I found my wife with a man, should I wait until I bring four witnesses?” The Prophet said, “Yes.”

[Hadith narrated by Abu Hurayrah, in Muslim,
Sahih Muslim,
bk. 009, no. 3570 (9th century ce)]

210

a z i z a h a l - h i b r i a n d r a j a ’ m . e l h a b t i
Document 3–99

A man from Banu Fazarah came to the Holy Prophet and said, “O God’s Apostle! A black child has been born to me.” The Prophet asked him, “Have you got camels?” The man said, “Yes.” The Prophet asked him, “What color are they?” The man replied, “Red.” The Prophet said, “Is there a gray one among them?” The man replied, “Yes.” The Prophet said, “Whence comes that?” He said, “Maybe it is because of heredity.” The Prophet said, “Maybe your latest son has this color because of heredity.”

[Hadith narrated by Abu Hurayrah, in Muslim,
Sahih Muslim,
bk. 9,
Kitab al-Talaq,
no. 3574 (9th century ce)]

Document 3–100

The Prophet said, “The most wicked among the people in the sight of God on the Day of Judgment is the man who goes to his wife and she comes to him, they have intercourse, and then he divulges her secrets by describing what they did in their intimacy.”

[Hadith reported by Abu Sa’id al-Khudari in Muslim,
Sahih Muslim,
bk. 8,
Kitab al-Nikah,
no. 3369 (9th century ce)]

Document 3–101

The Prophet said, “God does not look at a man who has anal sex with his wife.”

[Hadith narrated Abu Hurayrah, in Ibn Majah,
Sunan Ibn Majah,
bk.
Al-Nikah
(marriage), no. 1923 (9th century ce)]

Document 3–102

a b u h a m i d a l - g h a z a l i

He should always start by sweet talk and a lot of kissing, for the Prophet said, “One should not approach his wife the same way a dumb beast does. Let there be an emissary between them.” They asked: “What is an emissary here?” He said, “Kissing and soft-speaking.” He also said, “Three matters are clear signs of social ineptitude of a man. The first is to meet a good person and to leave him before knowing his name and inquiring about his family. The second is to reject a gift, and the third is to have sex with his wife or female-slave before talking to her or kissing her and to withdraw before she is satisfied.”