The parliamentary debate

The debate over the draft law went on for six sessions (morning and afternoon) with in MPs taking part. Some fifty-four members participated in the debate over the khul' article, and an unprecedented one-quarter of the membership joined in the discussions over the draft in general.

The biggest storm was caused by the draft article giving a wife the right to have recourse to the court to travel without the consent of her husband. The majority of the members of the Assembly opposed it, on the grounds that the shari'a did not give this authority to the judge, but rather ruled that the husband had the right to his wife’s obedience, and she should not leave the matrimonial home without the permission of her husband, as proven by sound Prophetic hadiths. The wife could stipulate in her marriage contract her right to travel when necessary, and in this case the husband would be bound to comply. Some cited a Prophetic hadith to the effect that the believing woman may not undertake a journey of a day and a night without the presence of a mahram∙,ⁱ² seeking per­mission was thus in accordance with the letter and the spirit of Islam and with the customs and traditions of the East.

Those approving the ruling said that some scholars, most notably Imam Shafi'i, considered women should be safe when travelling and permitted them to travel alone if the road was safe; indeed, that trustworthy women could take the place of a male mahram. The rejectionists objected that the law was not concerned with a woman’s travel as a woman, but with the travel of a wife without her husband’s permission; and this decision was the right of the husband alone. The rejectionists added that the Prophetic sunna explicitly established that the wife should not leave the matrimonial home without the permission of her husband: how could this be retained while the wife had the right to travel abroad without his consent? In the question of his wife leaving the house, the sunna did not have regard for whether the husband was being obdurate or arbitrary in his decision; had it made this a consideration, there would be room for an analogy with the matter of her right to travel, but this was not the case.

On the khul' provision, those objecting to it argued that it effectively took away the husband’s authority and overruled his wishes, in violation of the Islamic shari'a. This was the position of many Assembly members, including prominent figures of the ruling NDP, who called for the text to be amended to comply with Ihejuristic consensus requiring the husband’s consent. I hey also argued that the text conflicted with the traditions and customs of Egyptian society by requiring the return of the dower, while in most marriages the full dower was not declared, which meant the husband stood to suffer a loss. The text should therefore be amended so that ‘dower’ became everything that the husband had paid. They also demanded that both parties to the dispute should have the right to appeal. On the other hand, those supporting the khul' provision held that the right of mutual consent was already established in the article, and in the event that they could not agree it was Cstablishedjurisprudentially that recourse could be had to the courts where the judge could rule for khul'. In the end, the Assembly called for a new clause to be added to the provision on khul' requiring the court to appoint two arbitrators from the respective families to try to reconcile the spouses for three months before issuing a decision on divorce.³³

On other matters, some Assembly members approved the idea in the draft law of reviewing prison sentences in personal status cases, on the grounds that modern legislation was always looking for an alternative to imprisonment because of the negative effects it had on human relationships and its fracturing of family structures, with no benefit to any party — what did it benefit a wife, for example, if the husband who was refusing to pay maintenance was put in prison? They agreed that there should be an optional alternative such as a fine.

There was a furious debate over what became Article 19 in the law as passed, regarding the appointment of arbitrators where this was required in cases of judicial divorce. The article stated that the court should charge the spouses, as far as possible, to name one arbitrator from the wife’s family and one from the husband’s in the following session, but if one of the spouses failed to do so or did not turn up, the court would appoint an arbitrator for him or her. The arbitrators had to appear at the session following their appointment to give their report, but if they differed or one of them did not come, the court would hear the statements of the two or of the one who came and might act on what they had concluded together, on what one had concluded, or on other material from the file of the case. Some demanded in this regard that the law should conform strictly with the Qur'anic text stipulating the choice of one arbitrator from the husband’s and one from the wife’s family to investigate reconciliation between the spouses.