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From Issue: 1024 [Read full issue]

Undisclosed Balancing

Are parents allowed to force their daughters to marry? Is it lawful for the daughter in question to refuse to marry the person her parents have selected? Is it unlawful for a woman to defer marriage so that she may complete her studies? Is a woman religiously obligated to marry?

In legal opinions issued by some jurists, it is asserted that it is unlawful to force a woman to marry; consent is a necessary element in the marriage contract and so coercion is impermissible. Next, they state that even though a father may not coerce his daughter into marriage, it is unlawful for a daughter to disobey her father by rejecting a suitor without good cause. They contend that fathers know what is in the best interest of their child, especially in the case of women because women are overcome by irrational emotions. If a father selects or approves of a suitor, then it is obligatory upon the daughter to accept that person unless the suitor is not religious - for example, he does not pray or drinks alcohol. Furthermore, it is religiously incumbent upon all women to marry, and deferring marriage in order to study is unlawful. Some offer the advice that if the woman wishes, she may set a condition in the marriage contract that would obligate her husband to allow her to complete her education. However, they then add that they do not believe that it is necessary for a woman to attain an education beyond the elementary level. It is sufficient for a woman to learn to read and write, and a pious Muslim woman should not aspire to more than that. Some go even further to assert that a woman may not neglect her housework or her obligation to take care of her husband in order to pursue Islamic studies. While religious knowledge is important, it is sufficient that a wife achieves a minimal degree of religious education.

It is difficult to extract from the responsa what might be considered a legal determination as opposed to social counselling. Whether fathers know best, or whether an elementary level education is sufficient for women, implicates value-based social assumptions. As to the remaining issues, those jurists use the word "unlawful" to describe the behaviour of a woman who refuses to obey her father, prefers study to marriage, prefers celibacy to marriage, and gives more attention to her studies than her husband. The use of the word "unlawful" invokes the authoritativeness of God, and indicates a legal determination. This, of course, raises the question: what is the basis of this determination? At the most basic level, those jurists were engaged in an undisclosed balancing process between different legal obligations, and the different interests attached to these legal obligations. Assuming that a daughter does have an obligation to obey her father, is weighed against the fact that a daughter has the right to choose her marital partner. The right to choose is affirmed by the prohibition of coercion in marriage. Furthermore, there is a clear Islamic obligation upon men and women to become educated, and to seek knowledge (talab al-ilm). Assuming that marriage is a legal obligation, the woman's interest in discharging the obligation of seeking knowledge must be weighed against the obligation to marry. Again, coming from particular value-based orientations, these jurists have no difficulty in ruling against the mobility and autonomy of women. Importantly, however, the outcomes of the balancing process are presented as clear Divine determinations not open to questioning.

The Quran and Sunnah do demand respect and reverence, by both men and women, for parents. However, conceptually, there is a difference between respect and obedience. Furthermore, the Islamic legal principle, "obedience is due (to anyone) only in what is good," raises the question, how do we define the good? For instance, assume that the husband picked by the parents is a pious person, but boring, short-tempered, bad-smelling or stupid. The fact that these traits might not bother the parents, or that they might not have noticed them, do not affect the parents but do affect the spiritual and intellectual balance of the spouse who has to live with them. Nothing in the sources dictates that the preferences, tastes or repose of the person who will do the actual marrying ought to be ignored or ought to be outweighed by the preferences, tastes or repose of the parents. The sources do set out principles such as respect your parents, marry a pious and good person, seek knowledge, and live a life of tranquillity etc., but they do not necessarily create a hierarchy for these principles. Importantly, the Quran emphasizes that marriage ought to be a source of tranquillity and repose for the spouses, and, arguably, this weighs the balance in favour of full autonomy for children in choosing their spouses.

Another element to consider here is the determination of the jurists that women ought to marry, even if it means cutting their studies short. The Quran does recommend marriage to those who are able to carry its burdens, and traditions attributed to the Prophet emphasize the same point. Importantly, however, the classical interpretive communities had determined that marriage is recommended, and is part of the Prophet's Sunnah, but it is not a legal obligation (al-zawaj nadb wa la yalzam). In fact, well-known jurists such as Ibn Taymiyyah and al-Nawawi never married. According to the classical jurists, a sin is not incurred for failing to marry unless a man or woman fears that they will be unable to abstain from illicit sexual relations. In addition, a person does incur a sin if they marry when they are unable to carry the burdens of marriage. Even more, the seeking of knowledge is considered a faridah (religious obligation) or, at least, a wajib (religious duty). Meanwhile, according to classical jurists, marriage is a Sunnah (recommended or favoured act), and not a mandatory obligation. Yet, those jurists, do not explain how they reached the determination that marriage takes precedence over the pursuit of knowledge. In their responsa, they invoke the categories of lawful or unlawful, but it is not clear to what extent are they relying on the authoritativeness of the classical juristic tradition, and if they are performing a de novo determination (ijtihad), what forms the basis for it. Furthermore, whether it is possible to marry and pursue knowledge at the same time hardly needs the determination of a special agent. This type of personal decision is very fact specific, and there is no indication that jurists are particularly qualified to make a general determination as to the appropriate balance to be struck in all cases.

Compiled From:
"Speaking in God's Name: Islamic Law, Authority and Women" - Khaled Abou El Fadl

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