Conference Report: Islamic Family Law Reforms
By Nigar Ataulla & Yoginder Sikand
Much has been written about Islamic family laws and Muslim women’s status and rights by Western or secular critics and human rights activists, on the one hand, and by traditionalist ulema, on the other. The former are generally bitterly anti-Islamic, and the latter often fiercely patriarchal, and there is absolutely no meeting ground between the two groups. This lack of dialogue between them is one of the major causes for the slow pace of reforms in Muslim family laws in many parts of the world.
It is in this context that a three-day conference recently organized in Tehran, Iran (which I had the good fortune of attending) assumes particular salience. Sponsored by the Tehran-based Institute of Islamic Culture and Thought and the Centre for Women and Family, it brought together over a hundred university scholars, ulema, human rights activists and senior government officials, from mostly from Iran, but also from Lebanon, Iraq, Morocco, Afghanistan, England and India, to discuss various aspects of Islamic family law. More than half the participants were women, including several scholars who had received specialized Islamic legal training in madrasas and universities across Iran. A substantial number of madrasa-trained male Iranian ulema, including some holding leading posts in important government-related organizations, also took part. It was a unique opportunity for university-educated Muslim scholars as well as madrasa-trained Iranian ulema (many of who also have a university training) to interact with each other on a wide range of issues related to Islamic family law and legal reforms. And as an Indian, for me it was the first time to witness a rich and free scholarly discussion between Muslim women rights activists and Islamic scholars and male ulema free of any acrimony and mud-slinging, with both listening respectfully to each other.
In his opening remarks to the conference, Hojjat ul-Islam Ali Rashad, director of the Institute of Islamic Culture and Thought, spoke about the need to understand Islamic family law in the context of what he called the ‘philosophy of the family’ in Islam. In contrast to the West, he said, where family laws and debates about women’s rights centre on the notion of rights alone, Islam stresses the duties as well as rights of both spouses. This point was further elaborated by Maryam Ahmadiya, a senior research scholar and member of the Social and Cultural Revolutionary Council of Iran. She dwelt on what she termed the principle of “ma ‘ruf” or morality, informed principally by religion and urf or socially approved conventions, that should mould family relations, in addition to laws. She defined “ma‘ruf”, which is linked to the Quranic commandment of ‘enjoining what is good’, as moral acts, kindness, loyalty, friendship, respect, moderation, patience, friendship and generosity that, she said, forms the basis of an ideal family, and which, in a sense, are much more crucial than mere laws and legal sanction in maintaining the family unit.
The second session of the conference was devoted to specific legal issues. Farajullah Hedayatnia, an Iranian religious scholar, spoke on the issue of polygamy, focusing particularly on the right that a Muslim wife has to include in the marriage contract a clause forbidding her husband from taking a second spouse. Fatima Bodaqi, an Iranian woman judge from the Iranian seminary town of Qom, spoke about the question of a divorced wife’s residence. She argued that the Islam forbids men from throwing their divorced wives onto the streets, thereby forcing them into destitution. In some specific cases, she argued, the man must leave the house, not the divorced woman. She raised the question of the possibility of a woman enjoying the right to live in the common residence even after divorce till she marries again. In Iran, she said, divorced women can even ask for payment in lieu of wages for work done in the house during the period of the marriage, and this amount is to be decided by the courts.
Hojjat ul-Islam Muhammad Sadeqi, an Iranian Shia alim, presented a paper on ‘temporary marriages’ among some Shias and Sunnis, called muta and misyar respectively, arguing that such arrangements were in some extraordinary conditions a necessity in order to prevent ‘social corruption’. He pointed out that such marriages were not meant to be the norm or to substitute for permanent marriages. A lively discussion followed thereafter, with some participants speaking out against the gross abuse of muta and misyar for sexual exploitation. Aicha al-Hajjami, a speaker from Morocco, argued that there was a need for critical reflection or ijtihad on the matter to stop the practice in accordance with ‘social welfare’ or maslaha. She also elaborated at length on various new provisions in Moroccan law, derived from alternate interpretations of the shariah, that have provided women considerably more rights than before.
The third session of the conference was devoted to discussions on the principles of Islamic family law. Hojjat ul-Islam Ali Doust, a senior professor at the Hauza ul-Ilmi, Qom, spoke about the need for and proper method of engaging in ijtihad on a range of legal issues, including those related to family matters. He pointed out that in the Shia Jafari school of jurisprudence, which is followed in Iran, aql or reason is considered a major source of law and a basis of ijtihad, and said that this could be used in a creative way to deal with a host of legal matters that many Muslim societies are confronted with today, including in the realm of family law. He stressed the need for contextually-relevant ijtihad on family law matters in accordance with the ‘aims of the shariah’ (maqasid-e shariah) and ‘wisdom’ (hikmat), of which justice (adl) is a major component. Muna Zelzela, a woman Member of Parliament from Iraq, stressed the need for Muslim religious scholars and institutions to take issues of gender oppression seriously, calling for dialogue between and benefiting from the legal systems of different Muslim countries to ensure greater gender justice for Muslim women. Hojjat ul-Islam Abdul Ali Tavajjohi, a religious scholar from Qom, dwelt on family courts, and stressed other forms of conflict resolution between spouses before their cases are taken to such courts. Masood Noori, a Professor at Qom University, spoke about rights of children and the concept of children’s ‘best interest’ in Islamic jurisprudence, and called for benefiting from international rights discourses in this matter. Mohammad Mahdi Meqdadi, another legal specialist from Qom, spoke about the prohibition of violence against children in both Islamic as well as international law. Gholam Reza Peivandi, a student of criminal law, presented a paper on children with incompetent parents or guardians and legal issues related to this from an Islamic perspective. It is the duty of the state, he said, to protect such children, and, if need be, even to punish such parents or guardians. He spoke about a bill recently ratified by the Iranian Parliament setting out a comprehensive list of rights of children, including protection from parental neglect and abuse. My own presentation was about a leading Indian Shia alim, Maulana Kalbe Sadiq, and his vision of a Quranically-grounded theology of gender justice.
The valedictory address to the conference was delivered by Gholam-Hossein Elham, the Iranian Justice Minister. He spoke about how Muslim countries and communities in other parts of the world could benefit from the remarkable progress made by Iranian Muslim women in various spheres, including education and employment, in the years following the Islamic Revolution of 1979. Like several speakers before him, he invoked the Islamic principle of ijtihad which, he said, could enable Islamic jurisprudence, including on family matters, to provide answers to new and pressing challenges.
The conference ended with a formal declaration to establish a permanent secretariat, based in Iran, to work on Islamic family law matters and to convene an international conference every two years on the subject, in which Muslim and non-Muslim scholars, ulema and human rights activists could share their views and experiences.