The Islamic Studies Academy (Majma, al-buhuth al-islamiyya)
The Islamic Studies Academy was the first to express opposition, demanding changes and proposing amendments. In the session that approved the draft, fourteen of the members of the Academy were absent; fourteen members spoke and eight others stayed silent throughout the session.29 Of the fourteen who spoke, according to the record of the meeting, five supported the law and eight objected.
Over the course of four closed meetings, a committee of the Academy and certain professors of shari'a and of law drafted amendments to certain articles that they considered contrary to the shari'a, approved in their final form in the session of U February 1999, which in addition to Academy members was attended by the Minister of Awqaf Dr Hamdi Zaqzouq, the Mufti of the Republic, Dr Nasr Farid Wasel and the Dean of al-Azhar University, Dr Ahmed Umar Hashim.Among the points which raised controversy in the committee was the reference to the dominant opinions of the Hanafi school in matters of personal status and of waqf not covered in the relevant legislative instruments. Some committee members held that since the law contained provisions taken from other schools of law (such as judicial divorce for harm, from Maliki rules, and some of the provisions on divorce), this provision should be amended; others argued that it was unnecessarily restrictive and rather out of touch with reality to have a text stipulating one jurisprudential school only. However, the idea of changing the text provoked considerable debate and in the end the committee members agreed to leave it as it was, in order that nobody should rely on unorthodox jurisprudential views such as those of the Shi,a.
On the question of the wife’s right to khul', the committee was split. The draft law contained a provision giving the wife the right to obtain a divorce from the court in exchange for waiving her financial rights, a procedure which some saw as acknowledging the wife’s right to divorce whenever she wanted.
Some committee members argued that this would open the door for women - particularly wealthy women — to flee their marital responsibilities and to break up their families. The other side argued that the Prophet himself had approved divorce by khul', that a woman would go for a divorce only when she had real justification for such action, and that it was not in society’s interests for a family to have to stay together when the wife had declared her hatred for her husband and her desire for a divorce. The committee finally agreed by majority vote that the wife should have the right to a khul' divorce in exchange for giving up all the property she had received from her husband, such as the dower and gifts, in addition to maintenance and the deferred dower. They also recommended that the court should do its utmost to effect reconciliation before issuing a ruling in such a case.The committee was also split on the provision in the draft law that talaq would not be ‘counted’ (i'tidad) unless there were witnesses and it was documented. Some held that this provision, meaning that the incidence of the talaq would not be recognized unless there were two witnesses and it was documented with the notary, contradicted the shar'i rulings establishing that talaq can occur by mere pronouncement, without the need for documentation or registration. This group held that the provision should have added to it a phrase to the effect that talaq should occur ‘religiously’ — that is, between the worshipper and his lord — so that the woman accordingly becomes prohibited to him in terms of the shari'a even if the talaq had taken place without witnesses or documentation.
Other members believed that in order to guarantee the rights of the wife and protect her from a situation in which her husband engaged in marital relations with her when she was unaware that he had unilaterally divorced her, the article should remain. If the divorce had not been properly documented, the wife would retain all her rights under the law; this would oblige the husband to document the divorce properly.
The committee agreed to recommend that it be taken into consideration that the terms of this provision did not affect the fact that a verbal talaq occurred religiously Idiyanataii) even while not being ‘counted’ legally unless it was witnessed and documented.'Uιfι marriage was also a matter of wide debate among members of the committee. If they agreed that 'uιfi marriage should not be recognized, and that marriage should be officially documented, there remained the problem of wives in fuιfi marriages who wished to obtain a divorce; as it stood, if such a woman married another man in an officially documented marriage, under criminal law she would be committing bigamy and would be liable to punishment. The committee accordingly added an amendment providing that claims for judicial divorce should be accepted if a wife in such a situation produced any material evidence for the establishment of the existing marital relationship, even if this were a letter from the husband to the wife. In such a case, they proposed, the woman could obtain a judicial divorce, although she would not be entitled to any other rights.
Another major amendment sought by the Academy on the basis of a consensus of its members was that a ruling of the court of appeal on judicial separation of a wife from her husband should be implemented only after the Court of Cassation had issued its ruling on the case, provided that the Court of Cassation should rule within a period not exceeding four months, unless the appeal period of two months had passed without the husband objecting, in which case the appeal court’s decision should be implemented.30
Consensus was also forthcoming on the amendment of a draft text that stated that in the event of denial, claims of acknowledgement of paternity or of witnessing such acknowledgement would not be heard after the death of the testator unless there were official or written documents in the handwriting of the deceased and carrying his signature.
In light of widespread illiteracy, Academy members felt that this would deprive many children of the opportunity to establish their lineage to their father, whereas the shari'a safeguards the establishment of paternity in order to protect the children from ruin. They therefore proposed that the text be amended to permit any other form of definite proof such as a blood test; the text of the law as finally passed allowed for such other forms of definite proof, without giving examples.31With regard to other matters, Academy members also objected to the draft law failing to set out how the 'idda (the waiting period after the end of a marriage, during which a woman may not remarry) was to be calculated, proposing that the law should stipulate the period according to particular standards: thus for a young woman still menstruating the 'idda period should be sixty days, for an older woman ninety days, and for a pregnant woman until childbirth. They also recommended that in regard to the provision stipulating that the court would not hear claims by spouses where the wife was under sixteen or the husband under eighteen, an Explanatory Memorandum should note that this did not mean that their marriage was not shar'i and subsequently gave rise to shar'i rights.
Al-Azhar scholars The draft law provoked senior scholars at al-Azhar to issue a comprehensive statement setting out the points on which they disagreed. Another statement was issued by the al-Azhar Scholars’ Front underlining their total rejection of the provision on khul'. A number of points were raised on khul' in the two statements, including the need for the husband’s consent to khul', how the divorce is to be effected, and whether it constitutes a final or revocable talaq, or indeed a dissolution of the contract Jaskh), as well as the 'idda of the wife. The statement by the senior al-Azhar scholars held that the khul' provision was an explicit violation of the rulings of the shari'a, and extremely dangerous for the integrity of the family.
The first clause of the draft provision, stating that the spouses could agree together on khul', was the only part to conform to the shari'a', the rest of the clauses flouted the principle of mutual agreement, giving the decision to the judge and overriding the will of the husband, although as a party to the contract it should not be implemented without his approval, not to mention the right of qiwama which, the statement continued, was ignored in the provision. If the two spouses did not agree between themselves, the wife’s unilateral claim for a divorce should not be heard; hatred and dislike were not objective grounds that could serve a shaτ'i ruling, and using them as grounds for divorce against the will of the husband was a serious matter that would throw a time-bomb into the Muslim household which the wife could detonate at any moment. The final clause of the draft, providing that the judge’s ruling for divorce would be final and not open to appeal, was a disaster in the view of the scholars and ‘raised doubts about this article’.Progressive Islamists Progressive Islamists such as Hassan Duh and Gamal al-Bana believe that the most important issue is women’s freedom. If we believe that women should enjoy freedom and the fulfilment of their personal potential, as men do, freedom being a gift from God rather than from the husband or the father, then issues like the khul' or women travelling abroad or other such matters would find a solution. If the issue of khul' is raised then talaq must also be considered; the man should not have the absolute right to divorce his wife unless the woman has the right to free herself from a husband she hates and with whom she can no longer live, so she should ransom herself and pay an exchange for her freedom.
On the issue of women travelling abroad without the husband’s consent, Duh holds that the constraint on travel is to protect the wife from harm rather than that she should be deprived of travel. Accordingly, if the travel is safe and for a reason that realizes an interest for the wife and her family (such as for pilgrimage, studies or work) then the husband should support it rather than forbid her.
If he acts arbitrarily then the court should pronounce with all speed in order that the woman not miss an opportunity she considers to be in her interest.Some of those who had opposed the article on khul' cited a hadith which quoted the Prophet as saying that women who divorce by khul' were hypocrites. However, Shaykh Gamal Qutub, former head of the Fatwa Committee at al-Azhar and a prominent scholar, emphasized that the Prophet had never impugned anyone’s faith nor insulted anyone, and that there was no proof that women divorcing by khul' were hypocrites. Furthermore, Shaykh Qutub held that the law oppressed women by requiring that they give up all their rights, as well as by providing that the court was to appoint two arbitrators to attempt reconciliation, delaying its decision more than once and for a period of up to six months during which the women would have to wait suspended.
Among other modern Egyptian jurists, the renowned scholar Shaykh Mohammed al-Ghazali had before his death called for the application of khul' provisions. While the court could postpone a woman’s petition in the interests of the family and children, or in the hope of the families intervening to reconcile the spouses, ‘if the wife refuses anything but divorce and gives back the property handed over to her, then she must be released and her feelings must be respected, it is not up to us to ask the hidden reasons for this wish of hers, to accept or reject it’ (al-Ghazali 1994: 178). He also observed that men were not permitted to coerce their wives into requesting a khul', making their lives so difficult that they would seek release at any price. Al-Ghazali quoted Shaykli Sayed Sabeq {Sunni FiqH) to the effect that if a khul' was obtained by a man through harming the wife, the agreement is void; Imam Malik held in such cases that the khul' would be implemented as a divorce and the husband would have to return whatever he had taken as remuneration (in the khul') from his wife (ibid., p. 180).