Woman judges and Sharia
By Asghar Ali Engineer
RECENTLY two women judges have been appointed in Malaysia in the Sharia court but strangely enough their appointment is conditional on their not handling cases pertaining to marriage and divorce.
They can handle other cases like the custody of children, maintenance, property, etc. The appointment of women judges is a welcome move but the conditionality attached seems strange.
The question is: why can’t women judges deal with marriage and divorce cases? Is there any such injunction in the Quran or the Sunnah? No, not at all. In fact Imam Malik and the famous historian and Quranic commentator, Tabari, have held that women can become qazis; Imam Abu Hanifa was of the opinion that women can be appointed as qazis in certain circumstances; no one held that it would be under certain conditions only.
Why then have such conditions been laid down in the case of the two Malaysian women judges? Is it not sheer male prejudice against women? Our jurists and scholars always oppose any innovation (bidah) and consider it haram, but when it comes to innovations involving women and which have no basis in the Quran or Sunnah, these are welcome. When the Quran and Sunnah do not lay down any conditionality for women judges one is justified in asking: why, then, this innovation?
Why can’t a woman qazi handle cases pertaining to marriage and divorce? Are the appointing men afraid that women judges would be sympathetic to women who generally suffer in cases of marriage and divorce, and that cases would be favourably disposed of in favour of the suffering women? Apparently no reasons have been given for putting in such conditions; one can only infer from circumstances.
Several hadiths have been narrated by the Prophet’s (PBUH) wives, particularly Hazrat Ayesha, in matters of marriage and divorce. If a woman has no proper understanding of such issues why are such hadiths accepted by the jurists? They should be rejected because they have been narrated by a woman. Also, it is known to Islamic historians that the Prophet used to consult his wives on several matters.
The Quran repeatedly asks believers to enforce what is good (maaruf) and prohibit what is evil (munkar) and believers include both men and women. Thus, it is as much obligatory on men as on women to carry out this injunction of the Quran, more so in the case of a judge. Imam Abu Hanifa was in favour of appointing women qazis precisely on the basis of this Quranic injunction. What is the function of a qazi if not to enforce what is good and prevent that which is evil?
Also, who understands better than women as to what marital problems are and how often men divorce their wives simply in a fit of anger? In Islam marriage is a contract and both men and women have equal rights to enter into the contract, laying down conditions they like. If the woman has the right to lay down conditions for entering into a marital contract, she can also be supposed to have a thorough understanding of marital relations or a mutual relationship.
Nowhere do we find a verse in the Quran or a suggestion in a hadith that women are intellectually inferior in understanding such matters. As for the controversial tradition that women are naqis al-aql (intellectually inferior) and naqis al-iman (inferior in faith), the less said the better. The Prophet consulted his wives in several matters. He consulted one of them on the crucial matter of peace at Hudaibiyah, and accepted her advice to sacrifice his camel. He could not have said that women were inferior in intellect.
It was Hazrat Khadija who congratulated her husband for becoming the Prophet of Islam after he received the first revelation, and was perspiring and feeling uncertain as to what was happening to him. It was Hazrat Hafsa, his wife, in whose custody the earliest compiled Quran remained until the time of Hazrat Usman. The Prophet also is reported to have said that one who honours women becomes honoured himself.
The Prophet had all daughters and no surviving male offspring. He greatly loved them and brought them up with great affection. He used to say that one who loves his daughter, educates her and marries her off his place in paradise is assured. He loved his daughter Fatima most and would rise to his feet in respect when she entered his house. There are no differences on these matters among jurists and narrators of hadiths, and yet several hadiths are deemed as forged, which show women in a very poor light.
In fact, it should be not surprising that the entire discourse on women in the Quran is right-based and for men duty-based. What is surprising is that in Islamic jurisprudence the entire discourse reverses: for men it is right-based and for women duty-based. It is high time the Muslim intelligentsia came forward to rethink the entire corpus of Islamic jurisprudence in respect of issues and bring it in conformity with the Quranic spirit of justice, equality and human dignity.
The writer is an Islamic scholar who heads the Centre for Study of Society & Secularism, Mumbai.