Islamic Family law: The Search for Gender Equality Essay.

The social order of most societies, evolve around several instincts and out of those,
are not only powerful rather make a lot of influence on the society. From this object, every society in the world has come up with some rules to secure itself. However, the divine way of life the “Sharia” has come up with a unique system for the preservation of its subject, its values, the society, and the humanity at large. Classically, it has tried to elaborate the salient features of marriage as well as divorce in the Muslim family law, which is the focal symbol
of the Islamic society (Saeed, 2006). The family is the basic unit of the Islamic society. It has its beginning by the coming into existence of a husband and a wife. Then the chain extends to
their generations and therefore, the human society comes to existence. This paper will look
and discuss issues related to the Islamic family law, its evolution over time, and the changes
towards gender equality (Saeed, 2006). Islamic Family law: The Search for Gender Equality Essay.

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Establishment of the Islamic society
It is crucial for the accomplishment of the ends of Islamic Sharia that such means are
available that may fulfill such ends. This would be made possible only after the Islamic
society comes before the other nations as the ideal example as well as they be convinced that
Islam alone is the true religion in which human relations are established in the best manner.
To achieve this end, Islam adopts many means. Out of those means is marriage (Nikah)
(Ahmad, 1992). Islamic Family law: The Search for Gender Equality Essay.
By means of marriage, on the one side, the generation is protected and on the other
side human beings fulfills their natural need in the natural way. Resultantly, they perform
their social responsibilities in a very valid way. There are some responsibilities, which are on
man and they are certain rights established for him. A woman, after coming into the marriage,
becomes the supervisor and protector of the house. The man struggles for earning the
livelihood, and she is supposed to assist in some fields.
Classes of marriage in Islamic family law
According to the jurists, marriage is of five classes. The jurists have made these five
classes to bring in conformity with the diversity of juristic rules. Their understanding as well
as grasping needs deep insight and juristic skill otherwise, the fact is that in the Holy Koran
and the Sunnah of Prophet Mohammed, people has been made to incline to contract of
marriage. The five classes of marriage are:
One is the compulsory marriage: This is where; a person has all resources that are
necessary for a family life, such as adulthood, earning livelihood, a house and in good health.
If with all this possession, the man remains unmarried, he will indulge in major sin, and
therefore, it is compulsory for him to contract marriage (Saeed, 2006).
The second is Obligatory: this means that in the presence of the aforesaid
circumstances, if such a person instead of having a certainty, he has a probability that it is
possible that he may commit a major sin, then to contract a marriage is obligatory for him.
The third is unlawful: in the following circumstances, according to the family law, the
contract of marriage is unlawful. Firstly, where an individual is sure that, after marriage he
shall commit a major sin. In such situation, the marriage is unlawful. Secondly, the necessary
requirements for marriage life are not available within the man’s domain. For instance, a
person inclined in a particular woman, but he cannot marry her if he contracts the marriage
with someone else his inclination in the former remains intact, and he is certain that he would
commit major sin. In such a situation, his contracting into marriage with a second woman is
unlawful (Mir-Hosseini, 2000).
Equality among spouses is emphasized in the law. The purpose of such likeness is that
individuals living in a like environment become acquainted with each other within no time.
Their problems are common. The law requires there to be equality in matters of decent, faith
and piety, social status and wealth and property. Islamic Family law: The Search for Gender Equality Essay.
Divorce in Islamic family law
In case of any disunity as well as dissent between the spouses, the sharia law has
prescribed a reasonable way for the separation between the marriage individuals so that they
may determine for themselves new ways on the charged circumstances. This is what is called
divorce. When there remains no affection, love, and unity among the spouses, and there is no
alternative expect divorce, the separation in the manner prescribed by the sharia law is better.
However, separation among spouses is not act likes by Allah.
Number of Pronouncements of Divorce (Talaq)
The family law says that a married man, of sound mind, has the right to pronounce
divorce to his wife during their marital life three times (Saeed, 2006). In all those times, the
husband has the right to revoke the pronouncement as well as continue the usual marital
relationship. However, when he gives the talaq, exercising his third time right, then the
spouses do not remain husband and wife. The holy Koran says, “A divorce is allowed twice,
after that the married individuals should either hold together on equal terms, or separate with
kindness” (Saeed, 2006).
There are two kinds of divorce in the Islamic Family law. One is with regard to its
construction and the other is with regard to effectiveness. With regard to its construction,
refers to it that we can judge them by the standard of Sharia. After such examining, we can
declare it as to whether it is in accordance with the method prescribed by the Messenger of
Allah or is changing from such method. Such a divorce is further divided into “Talaq al
Sunnah,” which has been taught by Allah, and “Talaq al-Bid’ah.” The second kind is with
regard to effectiveness. With this kind, the divorce is of three kinds and each has different
rules. One is “talaq raj’I,” which means divorce where after giving the talaq, the husband has
the right to return to the marital life before. This processing is achieved by cohabiting with
the woman during periods of “iddat” after the first or the second pronouncement without any
remarriage ceremony. The second one is “talaq ba’in sughra.” Under this kind, when the
period ends, the man has no right to recall the marital life. However, the spouses can only
remarry by mutual consent.  Islamic Family law: The Search for Gender Equality Essay.The third kind is the “Talaq ba’ in kubra.” This kind of divorce
is that the husband gives three divorces to the wife at the same time. After such divorce, the
man has no right to revoke it nor can he remarry the same woman until she marries another
person and the new husband dies or he divorces her.
After a divorce has been finalized in the Islamic law, classical Islam afforded women
some social protection. While the father invariably retains his position as the guardian, and
his rights to guide the child’s education, the mother receives the custody of the children until
they reach a certain age, and the father would have custody afterwards (Dean, 2013).
Following a revocable divorce, the husband has to support the wife for a period of three
menstrual cycles, the time needed to determine if the wife was pregnant. A husband was also
under the Koran obligations to return to his divorced wife the unpaid portion of the dower
(Mir-Hosseini, 2000). All schools of thought in classical Islam agree that the mother has the
first claim to the custody of her infant, but there are differences in opinion as to whom should
the custody in the absence of the mother as well as when the period of custody ends.
Classical Islam provided women with mechanisms to pursue divorce. However,
majority of the mechanisms, require the cooperation of the husband, and only in limited
circumstances could a wife divorce an unwilling husband. Overall, many Islamic countries
put emphasis on the need for physical custody of the child to be with the mother (Dean,
2013). This is because, there is a common agreement that preserving the physical bond
between mother and her young ones is essential, and it may result in a child accompanying
the mother to prison if need be.
The principles and policies of inheritance
The Islamic inheritance law is built on a hard foundation, which does not happen in
some other form of system. However, in agreement agrees that the estate that remains after
all payments have been charged from the estate of the deceased is what is distributed to the
beneficiaries. These policies are key criteria of the inheritance law (Lawrence, 2000). The
policies are:
Firstly, Al- Wasatiyyah, which is a system that is intermediate in nature likened to the
capitalist as well as communist systems. In this principle, Individual ownership is guaranteed
and recognized by the Inheritance Law (Mohd Z. & Mohd, 2006).
Secondly, Al-Tawazun, which is a system that provides a balance to the fortune owner
to dispose of his fortune in the sharing of one third for donations through a will, and the
remainder, which is two third as inheritance for the beneficiaries according to the Islamic law
(Mohd Z. & Mohd, 2006).
Thirdly, Al-Adalah, which is a fair system of distribution of deceased property to all
the receivers based on human needs, nature, and their immediacy to the benefactor (Mohd Z.
& Mohd, 2006).
Fourthly, Al-Ijbar, which is a system that necessitates all the beneficiaries to get the
inheritance by Faraid, and the beneficiaries, cannot prevent a beneficiary from getting the
share of the inheritance. It is mandatory that all beneficiaries get the inheritance after the
benefactor’s demise, unless he or she relinquishes the rights (Mohd Z. & Mohd, 2006).
When we consider the laws of inheritance, the first principle that the Koran puts
down, is in reference to males as well as females having equal class and degree. This means,
a son inherits a share that is equal twice of the daughters; a full brother inherits two times
same amount as the full sister. A son’s son is entitled to inherit two times as much as the son
of a daughter. This norm however, is not unanimously applicable. For instance, the offsprings
of the mother known as the uterine sisters and brothers inherit equally. So does their
descendants.
In inheritance, there are primary heirs and they are entitled to a share, they are not
totally excluded. These heirs consist of the parents, spouses, relict, sons, and daughters. The
other heirs can be excluded totally by the occurrence of others in the will. There are rules of
segregation that govern the exclusion of certain heirs by the occurrence of others. For
example, a person (i.e. brother) who is connected to the departed through another person (I.e.
father) is left out by the existence of the latter (Coulson, 1971).
The inheritance in the law vests at the death by a specific tittle of each person who is a
heir, although it may not be highly possible to determine what property to give to each heir,
until all the necessary expenses have been charged such as funeral expenses, legacies and
debts among others. Therefore, a “vested inheritance,” can be said to refer to the share that
vests in an heir at the time of demise of the deceased, whose estate is claimed. If the heir dies
before the property is distributed, the share he was to receive is given to his heirs (Lawrence,
2000).
Inheritance under Islamic law will not take place except if the reasons for the
inheritance as well as the three supports coincide, which include al-warith, al-muwarrith, and
al-mauruth. Al-Warith is a recipient who will benefit from the inheritance, and is need to be
at the time of the benefactor’s death. Al-Muwarrith is whereby benefactor dies, regardless of
whether the death is genuine, taqdiri, or hukmi. Al-Mauruth is the wealth, which is owned by
the benefactor, be it solid or liquid wealth as well as all rights associated with such wealth
(Lawrence, 2000).
According to the law, when the conditions have been meet, the inheritance is topic of
a few responsibilities or liabilities, which must be satisfied by the beneficiaries afore it can be
allotted. The responsibilities or liabilities must be satisfied in the order of the following
importance:
One, paying funeral expenses, and rites such as expenditures for the shrouding and
bathing the corpse, digging the grave, bring the body to the cemetery, and entombing it
according to the expected rate. Two, settle down the debts of the benefactor whether the debts
are to Allah or to other human beings in the opinion of majority. However, some sect such as
Hanafi does not require the payment of debt to Allah as it was cancelled by death (Khan,
2003). Three, deciding matrimonial possessions claim by the still existing spouse if the
fortune is acquired during the marriage and the spouses have their corresponding
contributions. Four, carrying on the will made by the departed, if there is any, on the rate of a
third of the property immediately after settling the issues addressed above. At the same time,
a will cannot be made to the due beneficiary of the bequest even if the rate is less than a third
, unless approved by other beneficiaries, and the arrangement is got after the benefactor’s
death and not whereas he is still alive (Khan, 2003). Lastly, circulation of the inheritance to
the due beneficiaries as per faraid following the payment of all things stated above.
Difference in schools of thought regarding family law
There are crucial jurisprudential differences, which existed from the beginning, not
just between Shia and Sunni Muslims, but also, among the various differing school of
thoughts of each tradition, and within the same school of thought. Islamic Family law: The Search for Gender Equality Essay. The early jurists did not
just accept the serious disagreement as well as differences of opinion, but in fact clearly
described them as a sign of God’s grace. It is true that the jurists possibly assumed there to be
an effective interpretation of Koran as well as Sunna leading to the formulation of body of
Sharia principles. However, it is true that they can be an agreement on what those principles
were, or consent a one set of criteria as well as institutionalized mechanism for the official
determination of the Sharia principles. This appreciation of Sharia as a conditioned
interpretation as well as understanding of Islam is vital for the possibilities of modern
formulations of Family law, which would be totally with modern international standards of
human rights and the women rights in particular.
From the formative stage, there has been a gradual spread of Islam around the world,
with different schools as well as jurists alternating in influencing among their communities
Bonderman, 1968). For instance, the Shafii School may displace the Maliki School in some
region and be displaced by Hanafi School in some other regions. The fact that same school
succeeds in several communities does not mean that they all trail the same precise lines of
thinking in the school. The factors, which contribute to the complexity and diversity of the
practices and theory of Family law in Islamic communities, include the manner and timing of
the spread to various regions, and how as well as when was it displaced by European codes in
the time of colonial rule Bonderman, 1968). From here, it is notable that there are vital
differences among the different schools of Islamic jurisprudence that prevail in different
Islamic countries. Islamic Family law: The Search for Gender Equality Essay.
The marriage of Muta
The marriage of Muta is one that which the contract states that it will last for a static
period. This marriage is denoted to both in the hadith works and in the volumes of books on
jurisprudence. This marriage, since it is a temporary agreement, requires an acceptance and
declaration. The declaration is the requirement of the woman. The marriage must also have
one of the three formulas, the same that are used by Shia in permanent marriage (Hammudah,
1977). After the woman makes her declaration, the man does the “acceptance.” The man’s
words must show that he has been satisfied with the declaration. The declaration should lead
the acceptance as well as acceptance, in whatever order they may occur. It is decided that
there is consensus at this point. The legal deliberations of contracts declare that the
individuals who make the acceptance and declaration must be “worth of contract.” In Mut’a
this means that those who enter the arrangement must be the parties (man and women)
themselves, their fathers, or their representatives (wakil) (Hammudah, 1977).
The time of this marriage must be defined in a way that allows no possibility of
decrease or increase. Some jurists’ say that the hadith shows that it is allowable for the settled
upon time either to be linked to the moment of closing the contract. In this case, of Mut’a,
which begins after the postponement period, there arises the query of if the woman can marry
a second man in the period amid the ending of the contract and the start of the marriage
period. In the contract in Mut’a Domer must be mentioned and it must be of a known
property. This can be in cash or kind. To gain knowledge of property, it is enough for the
woman to see it, however, it is not essential that actually be weighed or measured
(Hammudah, 1977).
Trends in the 20 th century in Islam Family Law
Given the complexities and realities of the twentieth century, some conceptions of
marriage, is no longer sustainable. For instance, the classical framework of marriage that was
influenced by the contract of sale. The century has seen reforms of laws in many parts of the
Islamic world to compact with the complaints of suffering and injustice. Some of the
approaches have paid attention to adding conditions to marriage contracts, whose purpose is
to protect the woman and her rights, and to bring reforms to family areas such as polygamy
and divorce. The result of this is to minimize hardship and discrimination the Muslim women
face. The modern reforms show a growing concern to protect women in the Islamic world
and give them greater autonomy to matters of marriage, divorce, and inheritance.
Looking at the modern treatment of marriage, say polygamy, the trend has been
towards restricting the husbands from taking additional wives and thus, enhancing the
protections owed by their already married wife or wives. By limiting the number of wives in
the family, as well as requiring the wives to be treated equally, the laws are restricting the
unhampered practices of pre-Islamic Middle East. Some of modern day, Muslim States have
adopted the suggestions of the Family Law and other related legislations, expanding the
rights women enjoy under the classical Islam (Rahman, 1970). This is by giving them a
greater voice as well as ensuring that they have a say in the husband’s decision, thus ensuring
his ability to maintain the family. Islamic Family law: The Search for Gender Equality Essay.
Islamic law as made by the jurists in the pre-modern days remained endorsed by many
people in the Muslim societies until 19 th century when changes were seen to be introduced in
the Muslim communities. The need for changes, however, became apparent during the 20 th
century. The Muslims themselves saw the need to bring about changes in their own laws
especially the family law. This was after the saw the backwardness of their society due to
retrogressive ideas and practices (Rahman, 1970). Muslims have always been against
westernization but have adopted to accept modernization of the Sharia law. Some of the
states such as in Turkey have adopted legal reforms and women rights, which they have
documented in their books of law. The trends are seeing women being allowed by the
jurisprudence such as Talfiq to enter into marriage of their own accord. This is with no
intervention of the male guardian. This has been adopted by applying the principle of Talfiq
Jurisdictions, where the Hanafi School is hardly followed. For example, in morocco, the
Maliki School is followed, but it has seen this reform included in the family code
(Bonderman, 1968).
The trends in modernization of family laws have seen the matters of family being
placed in the hands of both spouses. At the same time, the woman has the right to stipulate a
condition in the marriage contract to the husband that can even be one restraining him from
marrying a second wife (Moghadam, 1994). Islamic Family law: The Search for Gender Equality Essay.
Feminist agendas in Middle East
The experience of women in the Islamic world was that of oppression. They were
looked as the minorities among the majority men, and they were oppressed in their own
societies for being women. This has led to women having to make a decision between
religion and feminist agendas so that their rights as individuals can be articulated
(Moghadam, 1994). The possibility of putting together religious and feminist struggle of the
minority groups has been proposed in various jurisprudence to benefit both equally. These
feminists from the Middle East have not received a lot of support from the international
agencies and the western governments. However, this has not deterred the proponents from
airing their views and propagating their agenda (Khan, 2003).
One of the main scholarship as well as campaigning for the Islamic feminists is issues
of the Islamic laws (Sharia) and the family law. Some of the critical issues regards to Sharia
law and how it is formulated with matters including marriage, polygamy, divorce, custody
and inheritance. There is other underlying issues that assumption of the man as the head of
the house (Moghadam, 1994). Islamic feminists have objected the laws in many of their
states, arguing that these legislations are discriminating to the female gender. Some have
even taken the altitude that reformed Sharia laws based on Koran and Sunnah do not
discriminate against the female gender (Khan, 2003). The feminists have been working
towards coming up with no discriminatory legislations to be included in the laws. Most of the
feminists are basing their arguments in the teachings of Islam. They use this to seek for full
equality of both genders in the society in both personal and public sphere. The concept of
Islamic feminism has expanded highly in Middle East as women try to rise in politics, have
more educations, and for the legislators and courts, this is a challenge, as they would not want
to suppress them, as the international world is more and more rooting for them. The educated
women are working hard to ensure that their issues are articulated in the society.
The feminist in the Middle East are using religious celebrations to grow their
networks (Rahman, 1970). When men fail to attend their events, they insist on retaining the
practice to mobilize more women to take part in the struggle for reforms in the Muslim world
(Moghadam, 1994). Islamic Family law: The Search for Gender Equality Essay.
Conclusion
The classical Islamic family law is one that has majorly been discriminatory against
the female gender. The laws on marriage, divorce, custody, and inheritance saw the woman
have fewer, if any, decision to make. Modernization has seen some of the aspects change.
The world is becoming more complex and people are moving around, mixing and exchanging
ideas. These as seen people start to root for equal family rights and equal voice in decision-
making. The Islamic family laws are based on the teaching of the Koran and the Sunnah. As
people get more educated, they are looking at the teaching from a different perspective and
are in ways more than one trying to use the to bring changes to the Islamic laws, family laws
and other matters of gender equality.
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