Respected Sister in Islam
RADIO INTERVIEW : SAFM LIVE
Our attention has been drawn to a recent radio interview in connection with Muslim
Personal Law at which you stated inter alia that :
"the bill supports unilateral and extra-judicial divorce on the
part of the husband, and that has no basis in the Quran, and that’s one of the areas
that requires reform...that type of divorce has no basis in the Quran."
This statement is contrary to the fundamental principles contained in
the Holy Quran and the consensus of muslim jurists (IJMA) throughout the ages. The
meaning of all the verses relating to talaaq in the Holy Quran is that the right of talaaq
has been given to the husband only. The talaaq takes effect immediately upon pronouncement
by the husband himself, and is not dependent upon the decree or consent of a third party.
As an illustration only, take the following verse of the Holy Quran:
- SURAH 33 VERSE 49
"O believers, if you marry believing women and then you (men)
divorce them before you have touched them ..."
In this verse, the right to pronounce divorce is given to the
husband, and the consequential effect of the divorce is also immediate – the divorcee
is not required to calculate a waiting period and she is free to marry a third party of
her choice.
- SURAH 65 VERSE 1
"When you (men) divorce women, divorce them at their prescribed periods and
calculate the period"
In this verse, the right of pronouncing divorce is clearly ascribed to the husband.
The instruction to divorce in a period of purity (by consensus) proves conclusively that
the unilateral pronouncement of the husband takes immediate effect, otherwise there was no
point in giving the instruction to him in the first place.
SURAH 2 VERSE 228
"And divorced women shall wait for three periods ... and their
husbands have the better right to take them back in that period if they wish for
reconciliation..."
The use of the words "divorced women" shows clearly that the
husband’s unilateral pronouncement of talaaq takes immediate effect and cannot be
regulated in any manner. This is why ALLAH has described them as "divorced
women". In addition, the right of taking back (RUJU) is the prerogative of the
husband in consequence of his unilateral divorce.
In all the circumstances, your statement quoted above, amounts to a
gross misrepresentation of Islam and a fundamental breach of Quranic Law. As you should
know, the wife is entitled by application to a judicial committee to have her marriage
dissolved on grounds recognised by Islamic Law. She is also entitled through the procedure
of TAFWID UL TALAAQ to have the right of talaaq assigned to her in the marriage contract
according to conditions recognised in Islamic Law. You made no mention of this, and other
relevant Islamic provisions relating to family law, in the interview in order to portray a
balanced and fair view showing the equity underlying the system of family law in Islam.
Whilst it is appreciated that the husband’s unfair treatment in
certain cases causes hardship to the wife, the answer is not to alter an express and
unambiguous text (NASS) of the Holy Quran, but to educate Muslims and to inculcate
true taqwa. All the laws of Islam are equitable, just and for the benefit of
society.
Unless, therefore, you retract your statement quoted above in writing
within 5 days, our Council will have no alternative but to publish a public rebuttal of
your views. We believe that such gross misrepresentation brings Islam and Muslims into
disrepute – apart from amounting to a gross violation of Islamic Law with serious
consequences. We look forward to hearing from you.
Wasalaam
-------------------------------
FOR UNITED ULAMA COUNCIL OF S A
DULY AUTHORISED
Shamima Shaikh, P O Box 601 Crown Mines 2025,
Tel: (011)837-9963, Fax: (011)8393632
9 August 1995
The United Ulama Council of South Africa
PO Box 4118
Cape Town
8000
Fax: (021) 696-8502
In the Name of Allah, Most Gracious, The Dispenser of Grace
Respected Brothers
Reforming MPL Practices
I greet you on this auspicious day – the birthday of the greatest
reformer, the Prophet Muhammad (saw) and National Women’s Day.
Muslims throughout the world commemorate the birth date of Muhammad (saw). We recall
that he came as a mercy unto humankind, challenging inhumane and unjust practices. He
brought the message of peace and tauhid – forever forbidding subservience to
any but Allah. The unity of Allah bears testimony that there is none worthy of worship
except Allah and that all humankind is equal irrespective of race, class or gender.
Today for all South Africans it is also a special day – Women’s Day. On this
day we honour the women who marched to the Union Buildings in 1956. We also reaffirm our
commitment to remove all forms of discrimination in our land, specifically that based on
gender – 1400 years later, but nonetheless affirming the message of our beloved Nabi
(saw).
I hope you are keeping well by the Grace of Allah. I have, as had the rest of my
family, the flu, but by Allah’s Grace am able to respond to your letter – Radio
Interview: SAFM Live.
I received the fax on the 24 July 1995 (and some days later a registered letter). In
the letter you are critical of my call for the reform of the practice of unilateral and
extra judicial divorce on the part of the husband and my assertion that this had no basis
in the Qur’an.
You assert that unilateral divorce has basis in the Qur’an and therefore cannot be
reformed. You support your position with extracts from the Qur’an, and ask me to
retract my statement within five days of receiving your fax or you will publish a
“public rebuttal”. You also say that my “gross misrepresentation brings
Islam and Muslims into disrepute”.
I thank you for the advice, information and for raising your points of contention. If I
did not respond immediately it is not because I thought the matter was not urgent. Rather,
I am officially a housewife and my own “business” often takes a back seat.
I do, however, resent your “demand” for a response within five days; you have
neither the moral (or other) authority nor power to make such a “demand”. It was
rather discourteous of you, I thought. You would have noted that I did not respond within
five days, so your promise of a “public rebuttal” will apply, I expect.
We very much want to engage in healthy and constructive public discussion on the issue.
Muslim Personal Law is not a private issue neither is it the domain of the clergy class;
it affects all Muslims, and we therefore believe it is an issue for public discussion and
input.
However, in the interests of fairness and Islamic aadaab we are sure you would
make it your responsibility to include our response to any “rebuttal”. And if
you are using any public platform it would be possible to respond on the same platform.
Remember that we have entered into a new era of transparency and democracy which your
constituent organisations have enthusiastically embraced. I am sure that in the same vein
you are also committed to changing the old system of excluding people from the mosque and
other Muslim institutions. Muslims have a heritage of access to mosque platforms – a
heritage sadly lost and missed.
We challenge the perception that the five ‘ulama bodies (i.e. Jamiatul ulama
Transvaal, Muslim Judicial Council, Jamiatul
Ulama Natal, Sunni Ulama Council, Sunni
Jamiyate Ulama) are the authorities of Islam in South Africa. We know that there is
no clergy in Islam and that there has always existed diversity of opinion in Islamic
history.
We would at the very outset like to say that we disagree with your promotion of
unilateral and extra-judicial divorce. We are terribly disappointed that you pick out a
few extracts from the Qur’an and on that basis decide on an issue and consider it to
be the only possible conclusion. On reading only the verses about divorce in the
Qur’an, many Muslim scholars arrive at conclusions different from yours. On reading
the message of the Qur’an in its entirety we are left in no doubt that arbitrary
divorce on the part of the husband conflicts with the spirit of shura, decency,
dignity and justice.
We must recall that the Qur’an 1400 years ago challenged inhumane and unjust
practices; in this challenge to unjust practices the Qur’an demonstrates that all
systems (including your MPL) require muhasabah (evaluation) and adjustment
periodically in order to continually reflect the principles of social justice and human
equality.
Please allow me to explain our position: We challenge the inhumane and unjust practices
prevalent in MPL. We believe much of the practice needs to be reformed to bring it on par
with the Islamic principles of justice, equality and freedom. We must go back to the
Qur’an and formulate an MPL that is just. The problem, it seems, is that you are
trying to implement an MPL code that was developed in the ninth century. The context was
different and the assumptions on which the laws were based are very different. We were
never meant to impose those laws on our context, rather, we are meant to apply the
eternal, universal and Divine Qur’an to our context.
The practice of unilateral and extra-judicial divorce in our context goes against the
grain of shura and decency. I will quote the translation of just two verses you
omitted. (I have for your information included the translation of most of the verses on
divorce in the Qur’an.) Please take note that we believe the Qur’an should apply
in its entirety and that it is a gross misrepresentation to select extracts and on your
interpretation of these, support your position.
And so, when they are about to reach the end of their waiting term, either retain
them in a fair manner or part with them in a fair manner. And let two persons of (known)
probity from among your community (i.e. persons who are acquainted with the circumstances
of the case) witness; and do yourselves bear witness before God (that the decision has not
been made in a frivolous manner); thus are admonished all who believe in God and the Last
Day… (Qur’an 65:2)
And if you have reason to fear that a breach might occur between a (married)
couple, appoint an arbitrator from among his people and an arbitrator from among her
people; if they both want to set things aright, God may bring about their
reconciliation… (Qur’an 4:35)
I would like to stress the Qur’anic message: part with them in a fair
manner; two witnesses, you yourself bear witness before God; appointment of arbitrators
from both sides, setting things right if both want to. All this makes nonsense of
the arbitrary divorce process prevalent and sanctioned by you, dear ‘ulama.
One should be aware of the warning of the Qur’an: “Do you believe in part of
the Book and reject another part?” The Muslim community is at liberty to
“listen
to the statement and follow the better part of it,” (Qur’an 39:18).
Moreover, marriage – we all agree – is a contract between two people and
therefore a legally binding agreement. If any one partner wants out there must be a proper
process. I do not believe that any of you would allow your business partner to opt out of
a contract between you without consulting you or going through some legal process.
Isn’t there more reason for a proper process for dissolution of a marriage contract.
I would like to remind you of Shaikh Rashid Ghannushi’s statement at the launch of
the MPL Board, where many of you were present. Shaikh Ghannushi cited the fatwa of
Shaikh al-Ja’it of Tunisia. He said that men abuse talaq and they must go to
court to dissolve the marriage. Nobody at the meeting challenged Ghannushi’s
statement.
I have touched briefly on some of the issues. There are many other issues we can share
our positions on. I would also like to remind you that it was your organisation that
dissolved the MPL Board. The MPL Board provided a forum for discussion and debate and we
would have all, no doubt, benefited tremendously, coming out enriched and better educated.
I welcome your assertion that a wife is entitled to apply for a divorce. I am sure you
would not be surprised to learn that there are some people who believe that this is a
misrepresentation of Islam.
Last but not least… I share your concern that Islam and Muslims are often brought
into disrepute even by Muslims themselves. Might I remind you that it is many from your
fraternity, the United Ulama Council, who have been responsible for “gross
misrepresentation of Islam” and the administration of injustices to women. The
testimonies of many women who have been subject to your administration of Muslim Personal
Law will bear witness to that.
Brothers, the “secular” state has committed itself to truth and
reconciliation, justice and equality, accountability and democracy…, why are we
lagging behind?
I look forward to hearing from you and pray that we will agree on a fair and
constructive manner in which we can take this discussion to the community.
Your sister in Islam
______________
Shamima Shaikh
THE UNITED
ULAMA COUNCIL OF SOUTH AFRICA
