Section 5. Shari'a and domestic violence

In Muslim societies, shari'a may function both as the basis of specific legal rules for organizing social relations, and as a general religio-cultural framework for norms and values.

The primary source of the Qur'anic principles of qiwama and ta 'a is Sura 4: 34. This same verse contains the most commonly cited reference used to assert men’s right or option to beat disobedient women. This verse is translated, and interpreted,¹⁷ in a variety of ways, but a standard English translation, which captures popular understandings about authority, (dis)obedience and punishment, states:

Men have authority [qiwamd∖ over women because Allah has made the one superior to the other, and because they [men] spend their wealth to maintain them [women]. Good women are obedient [∣fα^,α]. They guard their unseen parts because Allah has guarded them. As for those [women] from whom you fear disobedience ∖mιshuz∖, admonish them and send them to beds apart and beat them. Then if they obey you, take no further action against them. Allah is high, supreme.¹⁸

Asghar Ali Engineer (1992: 47) reports the historical origin of this verse as the case of a man (S'ad bin Rabi') who slapped his wife (Habiba bint Zaid) because she had disobeyed him. She complained to her father, who complained to the Prophet Muhammad.

In drawing interpretative meaning from this verse, several factors are at issue. First, because this was a revelation, it lends itself to interpretation that God sanctions beating disobedient wives as a last option (after admonishing them and abandoning their beds). But because beating women was quite common in that place and time, it also lends itself to the interpretation that God intended to restrict the practice. Moreover, to the extent that shari'a functions as ‘living law’ adaptable to changing circumstances (e.g. through ijtihad∖ even the apparently explicit sanctioning of beating can be construed not as an ageless and divine right but as a circumscribed means to express anger and frustration, and one that gradually should be abolished. For example, Azizah al-Hibri (2001: 75—81) argues that the Qμr'an imposed limits on the common practice of beating, and transformed it into a symbolic act. Hitting was not to be a normative standard of spousal relations but was to be used minimally if it could not be avoided entirely. Al-Hibri supports this reading by pointing to the Prophet’s declaration to men: ‘The best among you are those who are best toward their wives.’ Indeed, on numerous occasions he told men not to beat their wives and condemned the practice.

Other Qur'anic verses and hadith condemn violence between spouses. For example, Sura 30: 21 describes marital relations as tranquil, merciful and affection­ate, and the relationship itself as based on companionship, not service or tyranny. In this vein, Riffat Hassan (1995: 12) writes: ‘God, who speaks through the Qur'an, is characterized by justice, and...

Islamicjurists and scholars have grappled with the question of whether hitting constitutes a de jure right under shari'a, or a de facto option (see Eissa 1999). Some jurists have proposed that while husbands are allowed to beat their wives, they should not do so hard enough to cause pain or leave a mark (Badawi 1995). Nevertheless, the lack of consensus on this issue makes it difficult to mount a campaign against beating as unjust in principle.

While authorities responsible for the administration of family relations are not categorically indifferent to the beating or brutalization of women, the violence usually has to be extreme to prompt intervention, if that is a possibility at all. In fact, most of what is known about wife beating emerges out of divorce cases in which women use violence as a cause for seeking divorce. Even then, however, because of the importance of family relations, saving the marriage often is prioritized over saving or protecting women from violence. In many contexts, for a woman to obtain a divorce from a shari'a court on the grounds of violence, the harm would have to be provable and so great that the judge would determine continued cohabitation to be impossible. Under shari'a, legally proving harm in the face of denial by the husband requires two witnesses, which often is difficult to provide because domestic violence happens in private. And proving the impos­sibility of cohabitation is difficult because women often have to remain in, or return to, their marital home for lack of alternatives.

The notion that the use of physical force constitutes a right available to husbands certainly contradicts the Qur'anic ideal of marital relations as com­panionable and mutually supportive. It also runs contrary to the Qur'anic right of both men and women to dissolve a failed marriage, which would seemingly override the notion that women have a duty or obligation to submit to violence. Yet because there is a mention of beating in the Qur'an, it has impeded efforts to prohibit and criminalize domestic violence, and contributes to social attitudes about beating as a legitimate reprisal for disobedience.

Marital rape is another form of domestic violence that has proven difficult to prohibit within the context of dominant interpretations of shari'a. Although rape is a punishable crime in every Muslim society, nowhere is the criminal sanction extended to rape within marriage, arguably at least in part due to the under­standing of sexual consent implied in the marriage contract. (It should be noted that the recognition of ‘marital rape’ as a crime is a relatively recent development in the criminal laws of many non-Muslim societies.) Similarly, under shari'a rules, sexual intercourse (whether forced or consensual) outside the framework of a lawful marriage is prohibited. Thus, marital rape may be viewed as uncriminal- izable’ under dominant interpretations of shari'a. For example, Sura 2: 223 may be interpreted as a Qur'anic basis for men’s unabridged sexual access to their wives. This verse stipulates that ‘your wives are ploughing fields for you; go to your field when and as you like’. Although other Qur'anic verses and hadith instruct men not to force themselves sexually upon their wives, these may be superseded or overshadowed by the principle of female obedience.¹⁹ Indeed, a wife’s refusal to have sex with her husband can be conceived as a defiance of her duties, and can give rise to accusations of ‘disobedience’, thereby triggering legalistic justification for beating.

Forced marriage is a form of psychological and emotional violence (with physically violent possibilities). Although the Qur'an does not sanction this prac­tice, the principles of male authority and female obedience create conditions in which women’s subordination to their ‘guardians’ can enable men to impose their will on matters of marriage. While the Qur'an recognizes ‘mature’ (post-pubes­cent) women’s right to enter freely into marriage, their status as legal ‘minors’ under the authority of male guardians undermines their freedom or ability to assert this right in the face of male opposition.

Within patriarchal societies in general, there is little normative acceptance of social, legal or sexual autonomy for women. On the contrary, women’s options and behaviour tend to be heavily regulated and restricted. In contexts where gender and family relations are governed by shari'a, wives have a legal duty to concede to male authority, as long as this authority is exercised in a manner compatible with shari'a, and as long as the male fulfils his own obligations within the relationship. If women should act in a way deemed ‘deviant’ or ‘disobedient’, depending on the way in which shari'a is administered in a given context, punish­ment may be the prerogative of the state, or may be left to the discretion of members of the family or the community. In either circumstance, Muslim women’s vulnerability to violence is related, inter alia, Iojurisprudential traditions and social understandings of male authority and female obedience.

Of course, Muslim women are not uniquely vulnerable to domestic violence. Nor are social attitudes about female obedience and masculine prerogatives to ‘discipline’ and ‘punish’ women uniquely ‘Islamic’. What is particular to the situation of Muslim women are rationalizations deriving from shari'a. Indeed, the problem of domestic violence in Muslim societies in many ways resembles its counterpart elsewhere, and so too do the difficulties in combating it, given the cultural and legal gender biases operative in all societies. These difficulties have given rise to efforts to develop an international legal framework for dealing with a problem that is global in scope and harmful to women everywhere.