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State, feminists and Islamists—the debate over stipulations in marriage contracts in Egypt1

  • Ron Shaham (a1)

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A new dispute between Shaykh al-Azhar and the [Chief] Muftī concerning the marriage contract: Shaykh al-Azhar argues that the new contract permits the forbidden and forbids the permitted, that the contract is the creation of the secularists, and that it contains forbidden innovation (bida) and is misleading; the Mufti holds that the contract does not permit the forbidden or forbid the permitted, that it is a result of a permissible independent reasoning (ijtihād mashrū‘), and that some of the articles included in the contract were approved by a few classical jurists.

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1

This essay is part of a larger project, titled ‘The ‘Ulama’, the state, and the public debate on family reform in modern Egypt’. I thank the Harry S. Truman Research Institute for the Advancement of Peace for its financial support of this project. An earlier version of this essay was presented at a workshop on ‘Family and social order’ held in the Ben-Gurion University during the spring of 1998. I thank the participants for their useful comments. I am also thankful to Baudoin Dupret and Bettina Dennerlein for their assistance in gathering written as well as oral materials in Cairo; to my research assistants, Sharon Shemesh and Sāliḥ Sawāՙid; and to David Powers for his substantial and editorial comments on an earlier draft of the essay.

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2 The proposed marriage contract was intended to introduce an additional reform, namely a compulsory medical examination of the candidates to marriage, conducted by the Ministry of Health. The aim of these examinations was to make sure that neither candidate suffered from a disease that could endanger the health of the spouse and any future children, or prevent the establishment of stable and continuous conjugal life. I do not intend to discuss this aspect of the proposed marriage contract in this essay. For further details, see Rūz al-Yūsuf, 29 May 1995, 50–2.

3 There is a vast literature on this cultural debate in general and in the field of the family in particular. See, for example, Badran, Margot, Feminists, Islam and nation: gender and the making of modern Egypt (Princeton, NJ: Princeton University Press, 1995).

4 ՙAbd al-Raḥmān al-Jazīnrī, Kitāb al-Fiqh ՙala al-madhāhib al-arbaՙa ([Cairo]: Dār al-Irshād lil-Ṭibāՙa wa'l-Nashr, [1980?]), 4: 75–9.

5 This is true for other areas as well: in Ottoman Kayseri there were cases in which women stipulated that if their husbands took them away from their home town, or beat them, or took an additional wife, they were divorced. See Jennings, R. C., ‘Women in early seventeenth century Ottoman judicial records: the Sharīՙa court of Anatolian Kayseri’, Journal of the Economic and Social History of the Orient, 18, 1975, 8789. Similar stipulations are frequent among the educated segments of urban society in contemporary India (where the Hanafi school has the same dominant status as in Egypt) and are respected by the courts. See Fyzee, A. A., Outlines of Muhammadan law, 4th edition (Delhi: Oxford University Press, 1974), 124130, 474–6; Carroll, Lucy, ‘Talaq-i-Tafwid and stipulations in a Muslim marriage contract: important means of protecting the position of the South Asian Muslim wife’, Modern Asian Studies, 16, 1982, 277309.

6 Abdal-Rehim, Abdal-Rahman, Abdal-Rehim, , ‘The family and gender laws in Egypt during the Ottoman period’, in Sonbol, Amira El-Azhary (ed.), Women, the family, and divorce laws in Islamic history (New York: Syracuse University Press, 1996), especially 9899, 102–3, 105, 107, 110.

7 Hanna, Nelly, ‘Marriage among merchant families in seventeenth-century Cairo’, in Sonbol, (ed.), Women, the family and divorce laws, 143154.

8 El-Nahal, G. H., The judicial administration of Ottoman Egypt in the seventeenth century (Minneapolis and Chicago: Bibliotheca Islamica, 1979), 4647.

9 With respect to the location and quality of the dwelling, see Shaham, Ron, Family and the courts in modern Egypt: a study based on decisions by the Sharīՙa courts 1900–1955 (Leiden: E. J. Brill, 1997), 85 (and n. 89), 92 (and n. 130); with respect to the wife's work, see ibid., 93–4 (and n. 135).

10 El 2, s.v. Nikāḥ, 30.

11 Anderson, J. N. D., ‘Recent developments in Sharīՙa law III (the contract of marriage)’, The Muslim World, 41, 1951, 124125.

12 Fluehr-Lobban, Carolyn, Islamic society in practice (Gainesville: University Press of Florida, 1994), 125.

13 Badran, Margot, ‘Independent women: more than a century of feminism in Egypt’, in Tucker, Judith E. (ed.), Arab women: old boundaries, new frontiers (Bloomington, IN: Indiana University Press, 1993), 143. The booklet was titled Al-ḥuqūq al-qānūniyya li'l-mar'a al-Misriyya bayn al-naẓariyya wa'l-tatbīq. The group included ՙAzīza Husayn, Mājida al-Muftī, Injī Rushdī, Saniyya Sāliḥ, Marwat al-Talāwī, ՙAwāṭif Wālī, and Munā Dhu 'l-Faqqār, see ibid., n. 47. As early as 1939, the modernist Shaykh of al-Azhar Muṣṭafā al-Marāghī, who advanced a socioeconomic argument in favour of polygamy for peasants, proposed for urban women to stipulate in their marriage contracts that if their husbands married additional wives, they were entitled to divorce themselves (see Badran, , Feminists, Islam and nation, 130).

14 One of these studies was by Dr. Fawziyya ՙAbd al-Saṭṭār. It did not mention specifically the topic of the marriage contract, but few of the points that it raised were confronted later by the new marriage contract proposal. See Al-Muṣawwar, 10 June 1994, 72–3, and more reports on the conference in the same issue.

15 For a summary of the debate over the ICPD, see Middle East Contemporary Survey (MECS), 18, 1994, 123125, 271–2. Al-Muṣawwar reported extensively on this conference on 12 August 1994, 34–7, 80–1; 19 August 1994, 12–13, 80; 2 September 1994, 18–9, 78; 8 September 1994, 22–5, and 15 September 1994, 23–5. Al-Azhar severely opposed the decisions of this conference, which it defined as anti-religious as well as anti-Islamic, see Majallat al-Azhar, 67, September 1994, 443–8.

16 The Egyptian NGO platform document to the international conference on population and development, Cairo, 5–13 September 1994 (Cairo: Dār al-Jil lil-Tibāՙa, [1994]), 3537, 71–2.

17 Rūz al-Yūsuf, 2 January 1995, 28; Al-Muṣawwar, 27 January 1995, 76. For additional versions of the stipulations, see al-Shaՙb, 28 April 1995, 7; Zulficar, Mona, Women in development: a legal study (Cairo: UNICEF, January 1995), 152155; al-Lajna al-Qawmiyya lil-Munāẓamat ghayr al-Ḥukūmiyya lil-Sukkan wa'l-Tanmiya, al-Ṭarīq min al-Qāhira ilā Bikin [The road from Cairo to Beijing] (Cairo: Ministry of Population, [1995]), 59.

18 For the opinions of the women feminists, see especially al-Ṭarīq, 53–6; for the opinions of the ‘ulamā’, see especially Al-Muṣawwar, 27 January 1995, 76 (the Muftī); 17 February 1995, 30–3 (interviews with the Head of the Marriage Notaries and additional ‘ultimā’); 16 June 1995, 14–7, 79 (interviews with the Muftī and Shaykh al-Azhar).

19 al-Bannā, Kamāl Ṣāliḥ, Al-taՙlīq ՙalā qānūn al-aḥwāl al-shakhṣiyya al-jadīd [A commentary on the new personal status code] (Cairo: ՙAlam al-Kutub, 1982), 31.

20 Al-Bannā, , Al-taՙlīq, 31.

21 Zulficar, , Women in development, 49.

22 The attempt by former Minister of Social Affairs, ՙĀ'isha Rātib, to leave the country on a business trip—denied by her husband—is a case in point, see Lone, Saahir, ‘Women's groups press for rights’, Civil Society, 4/39, March 1995, 17.

23 El Alami, Dawoud S., ‘Law no. 100 of 1985 amending certain provisions of Egypt's personal status laws’, Islamic Law and Society, 1, 1994, 119, n. 3.

24 Fluehr-Lobban, , Islamic society, 127129. On similar views which appeared in al-Ahrām and al-Jumhuriyya, see Hijab, Nadia, Womanpower: the Arab debate on women and work (Cambridge: Cambridge University Press, 1988), 33.

25 El 1and El 2, s.v. Sukaina. Both articles discuss her reputation for numerous marriages, but neither mentions any stipulations in her marriage contracts.

26 Al-Bannā, , Al-ta'līq, 19.

27 Fluehr-Lobban, , Islamic society, 127129.

28 Al-Banna, , Al-taՙlīq, 53.

29 Fluehr-Lobban, , Islamic society, 127129.

30 On court suits pertaining to the jihāz, see Shaham, , Family and the courts, 2742.

31 Al-Musawwar, 27 January 1995, 76.

32 They included shaykh ՙAtiya Ṣaqr, president of the al-Azhar's Fatwa Committee, Dr. Maḥmūd ՙAbd al-Mutajalli Khalifa, member of the same committee, Dr. ՙAbd al-Jalīl Shalabī, the former secretary-general of the Academy for Islamic Studies (Majmaՙ al-Buḥūth al-Islāmiyya) and present member of the al-Azhar's Fatwa Committee, Dr. Aḥmad Shalabī, from the Department of History and Islamic Culture at Cairo University, Dr. MuḤammad al-Saՙdi Farhūd, the former president of al-Azhar, shaykh Mansūr ՙAbīd, under-secretary of state in the Ministry of Awqāf, and shaykh Manṣūr al-RifāՙT. See al-Muṣawwar, 17 February 1995, 30–3.

33 Al-Shaՙb, 24 February 1995, 7. The opponents were Judge Yaḥya al-Rifaՙī, formerly Shaykh al-Qudāt; the sociologist, Dr. ՙAlī Fahmī; the expert on constitutional law, Dr. Muhammad ՙUṣfūr; the expert on civil law, Dr. ՙĀṭif al-Banna; and the religious scholar, ՙAbd al-Rashīd Ṣaqr. The supporters were the writer, Jamāl al-Bannā; the expert on Islamic philosophy, Dr. Munā Abu Zayd; and the sociologist, Dr. ՙIzzat Karīm. The last two women supported the proposal in general although they opposed a few of the stipulations (such as the wife's right to travel and to divorce herself) for being contradictory to the sharīՙa.

34 Al-Shaՙb, 31 March 1995, 7. The representatives of ‘The Front’ in the discussion were Dr. Muhammad ՙAbd al-Munՙim al-Birrī, the president of the Front; Dr. Yaḥyā Isma ՙil, the general secretary; and, Dr. Maḥmūd Mazrūՙa, the vice-president.

35 Al-Muṣawwar, 7 April 1995, 13.

36 Al-Shaՙb, 28 April 1995, 7.

37 See the interviews published by al-Muṣawwar, discussed in my introduction. Two later interviews with Shaykh al-Azhar, in which he expressed similar views, were published in Majallat al-Azhar, 68, July 1995, 164–6, 170.

38 On these confrontations, see Skovgaard-Petersen, Jakob, Defining Islam for the Egyptian state: muftis and fatwas of the Dar al-Iftā (Leiden: E. J. Brill, 1997), 286289, who defines the relationship between the two as ‘notoriously bad’. Two of their main disputes were over the issues of ‘capitalization certificates’ (shahādāt al-istithmār) and family planning. Sec also Al-Musawwar, 27 January 1995, 77.

39 Al-Muṣawwar, 16 June 1995, 14–7, 79.

40 Al-Muṣawwar, 11 August 1995, 16–9. See also Majallat al-Azhar, 68, September 1995, 469–72, in which the presentation of the new marriage contract was included in a working paper prepared by Muna Dhu'l-Faqqār for the Beijing conference.

41 Al-Muṣawwar, 25 August 1995, 26–7; 1 September 1995, 64–7. On the opposition of al-Azhar both to working papers prepared for the conference by the Egyptian bodies, as well as to the concluding paper of the conference itself, see Majallat al-Azhar 68, September 1995, 465–72.

42 Al-Muṣawwar, 29 March 1996, 30–3.

43 This summary of the opinions of feminists is based on the conclusions of research conducted by the lawyer Amniyya Jamāl al-ՙAtlff, ‘The meaning of the contract in Islamic and statutory law, which includes a penetrating study of the marriage contract’, quoted by Rūz al- Yusuf, 2 January 1995, 26–30; on interviews with Munā Dhū'l-Faqqār, see ibid.; in al-Muṣawwar, 17 February 1995, 30–3; and in al-Ṭarīq, 53–6.

44 A study conducted by Dr. Amina Shamīs, based on 1,000 divorce suits filed by women, has demonstrated that only 24 per cent of the divorces were granted on the grounds of prejudice, while most were granted on the grounds of the husband's long absence (47 per cent) or desertion (15 per cent). See al-Ṭarīq, 54–5; Zulficar, Women in development, 56–7; Egyptian NGO platform document, 37.

45 This opinion, also adopted by Ibn Taymiyya, was based on a prophetic hadīlt, according to which, of all the stipulations undertaken by a Muslim man, the worthiest for him to fulfil is the one by which he made a woman (sexually) permitted to him (aḥaqqu mā awfaytum min al-shuruṭ an tūfū bihi ma istaḥlaltum bihi al-furūj), see al-Ṭarīq, 53.

46 An interview with Dīnā Ṣafwat, one of these young activists, in al-Muṣawwar, 11 August 1995, 16–9.

47 In a survey conducted among 295 students (58 per cent males and 42 per cent females) from the universities of Alexandria, Asyūtṭ, Minyā, Qanāt al-Suez and al-Manṣūra, about 16 per cent agreed to all the stipulations, 77 per cent agreed to some of the stipulations, and 5 per cent rejected the idea outright. The most controversial stipulations were the wife's right to work (only half of the students agreed); and her right to divorce herself without renouncing her financial rights (only 35 per cent agreed). For more details, including the reasons given by the students for their attitudes, see al-Ṭarīq, 56–8.

48 Al-Shaՙb, 28 April 1995, 7.

49 In this respect he cited Quran 4:21: (’How can ye take it [the dower] back after one of you hath gone in unto the other,) and they have taken a strong pledge from you?’ (… wa-akhadhnā minkum mīthāqan ghalīẓan); and prophetic ḥadīths: ‘Have the best intentions with the wives’ (wa-istawsū bi'-nisā’ khayrari); and: ‘Regard their pudendums as permissible by Allāh's word’ (wa-istaḥlaltum furūjahunna bi-kalimat Allāh).

50 Quran 30:21: ‘… He ordained between you love and mercy’ (… wa-jaՙala baynakum mawadda wa-rahma).

51 See the statements of the sociologist, Dr. ՙAlī Fahmī, and the expert on constitutional law, Dr. Muḥammad ՙUṣfūr, in al-Shaՙb, 24 February 1995, 7.

52 Feminists refuted this claim by arguing that the existing standard marriage contract, which was supported by the ՙulamā', was also man-made, since it was based on the statutory procedural law of 1931.

53 Al-Muṣawwar, 17 February 1995, 30–3.

54 This process is convincingly presented in Brown, Nathan J., The rule of law in the Arab world: courts in Egypt and the Gulf (Cambridge: Cambridge University Press, 1997), chs. i–iv generally, and especially pp. 6169 with respect to the sharīՙa courts; and Shaham, Family and the courts, with respect to the application of statutory legislation in the sharīՙa courts during the first half of the twentieth century.

55 Lone, ‘Women's groups’, 20, quotes in this respect Amīna al-Jundī, who asserted, ‘We are determined to match the global standards set for [women's] development in the various sectors of health, education, and culture’.

56 See, for example, the expression of one feminist in this respect, cited in Lone, ‘Women's groups’, 20.

57 Fluehr-Lobban, , Islamic society, 127.

58 On the innovative legal opinion in which he legitimized ‘capitalization certificates’, see Mallat, Chibli, ‘Tantawi on banking operations in Egypt’, in Masud, Muhammad Khalid, Messick, Brinkley and Powers, David S. (ed.) Islamic legal interpretations: muftis and their fatwas, (Cambridge, MA: Harvard University Press, 1996), 286296. On his symbiosis with the government, see Yvonne Yazbeck Haddad, ‘Operation Desert Storm and the war of fatwas’, in ibid., 297–309 (the legal justification which he provided for the Egyptian policy during the war); and, MECS, 18, 1994, 271–2 (his cautious criticism towards the 1994 ICPD's provocative agenda).

59 Lone, ‘Women's groups’, 20.

60 On this motivation as a key for understanding their behaviour, see Crecelius, Daniel, ‘Nonideological responses of the Egyptian ulama to modernization’, in Keddie, N. (ed.), Scholars, saints and sufis: Muslim religious institutions in the Middle East since 1500, ed. (Berkeley: University of California Press, 1972), 167209. For an indication to this concern among members of Jabhat ՙUlamā' al-Azhar, see al-Shaՙb, 31 March 1995, 7.

61 On the difference of opinions among students see the survey discussed in n. 47. On the critique of the proposal, depicting it as a privilege of bourgeois women, see Lone, ‘Women's groups’. Caricatures could teach us something about the general public's attitude towards the new proposal: on 9 January 1995, a caricature by Jumՙa, entitled ‘A new marriage contract’, appeared in Rūz al-Yūsuf. it shows a woman, with a tempting look on her face, dressed in her nightshirt, sitting in her double bed and inviting her husband to join her. The husband, wearing his pyjamas, sweating and looking terrified, mumbles: ‘I do not know what to say, there is no stipulation in the marriage contract to this effect …’.

62 See, for example, the expressions of officials and of President Mubārak on the eve of the 1994 ICPD, in MECS, 18, 1994, 272.

63 See, for example, Husayn Aḥmad Amīn in al-Muṣawwar, 17 May 1985, cited in Hijab, Womanpower, 33.

64 MECS, 19, 1995, 103–4.

65 Notice the proximity between the 1979 law and the July 1980 United Nations World Conference on Women in Copenhagen; and between the 1985 law and the same conference of 1985 in Nairobi.

66 Al-Muḥāmāt al-Sharՙiyya, 24: 429–32, case no. 85: Maghāgha court of summary justice from 31 January 1954. For a similar decision, see ibid., 21, 397–400, case no. 76: Asyut court of summary justice from 18 January 1947.

67 Ḥāshiyat Ibn ՙĀbidīn, the full title of which is Radd al-muḥtār ՙalā al-durr al-mukhtār, sharḥ tanwīr al-abṣār fī fiqh madhhab al-imām al-aՙẓam Abī Hanīfa al-Nuՙmān, third ed. (Cairo: Būlāq, 1323 H.), 2, 683. According to Ibn ՙAbidīn, the latest Hanafī classical authority, the husband is entitled to prevent his wife from any work that brings about a diminution of his conjugal rights, or inflicts an injury upon him, or causes her to leave his house (… yakūn lahu manՙuhā ՙan kull ՙamal yu'addt ila tanqīs ḥaqqihi aw dararihi aw ilā khurūjiha min baytihī). Such an injury might be that the wife's work damages her beauty or causes her to be awake late at nights and therefore tired during the days. If her work does not prejudice him, there is no reason to prevent her from work (fa-lā wajh li-manՙihā ՙanhu), especially if the husband himself is absent from the house, because a bored wife is tempted to engage in immoral behaviour with her neighbours or with strangers. It seems then that Ibn ՙĀbidīn referred to work conducted by the wife inside the conjugal dwelling. In any case, the final say with respect to the wife's work is with the husband, since he is only recommended to approve of his wife's work in a case in which he is not prejudiced by it.

1 This essay is part of a larger project, titled ‘The ‘Ulama’, the state, and the public debate on family reform in modern Egypt’. I thank the Harry S. Truman Research Institute for the Advancement of Peace for its financial support of this project. An earlier version of this essay was presented at a workshop on ‘Family and social order’ held in the Ben-Gurion University during the spring of 1998. I thank the participants for their useful comments. I am also thankful to Baudoin Dupret and Bettina Dennerlein for their assistance in gathering written as well as oral materials in Cairo; to my research assistants, Sharon Shemesh and Sāliḥ Sawāՙid; and to David Powers for his substantial and editorial comments on an earlier draft of the essay.

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