Alhassanain(p) Network for Heritage and Islamic Thought

Bearing Witness

Another issue in which the Qur’an and the Bible disagree is the issue of women bearing witness. It is true that the Qur’an has instructed the believers dealing in financial transactions to get two male witnesses or one male and two females:

“…and call in to witness from among your men two witnesses; but if there are not two men, then one man and two women from among those whom you choose to be witnesses, so that if one of the two errs, the second of the two may remind the other…” (2:282).

However, it is also true that the Qur’an in other situations accepts the testimony of a woman as equal to that of a man. Infact the woman's testimony can even invalidate the man's.

If a man accuses his wife ofunchastity , heis required by the Qur’an to solemnly swear five times as evidence of the wife's guilt. If the wife denies and swears similarly five times, she is not considered guilty and in eithercase the marriage is dissolved:

“And (as for) those who accuse their wives and have no witnesses except themselves, the evidence of one of these (should be taken) four times, bearing Allah to witness that he is most surely of the truthful ones.And the fifth (time) that the curse of Allah be on him if he is one of the liars. And it shall avert the chastisement from her if she testify four times, bearing Allah to witness that he is most surely one of the liars; And the fifth (time) that the wrath of Allah be on her if he is one of the truthful.And were it not for Allah's grace upon you and His mercy-- and that Allah is Oft-returning (to mercy), Wise!Surely they who concocted the lie are a party from among you. Do not regard it an evil to you; nay, it is good for you. Every man of them shall have what he has earned of sin; and (as for) him who took upon himself the main part thereof, he shall have a grievous chastisement.” (24:6-11)

On the other hand, women were not allowed to bear witness in early Jewish society.1 The Rabbis counted women's not being able to bear witness among the nine curses inflicted upon all women because of the Fall (see the “Eve's Legacy” section). Women in today's Israel are not allowed to give evidence inRabbinical courts2 . The Rabbis justify why women cannot bear witness by citing Genesis 18:9-16, where itis stated that Sara, Abraham's wife had lied.

“Where is your wife Sarah?” they asked him. “There in the tent,” he replied. One of them said, “I will surely return to you about this time next year, and Sarah will then have a son.” Sarah was listening at the entrance of the tent, just behind him. Now Abraham and Sarah were old, advanced in years, and Sarah had stopped having her womanly periods. So Sarah laughed to herself and said, “Now that I am so withered and my husband is so old, am I still to have sexual pleasure?”But the LORD said to Abraham: “Why did Sarah laugh and say, 'Shall I really bear a child, old as I am?' Is anything too marvelous for the LORD to do? At the appointed time, about this time next year, I will return to you, and Sarah will have a son.” Because she was afraid, Sarah dissembled, saying, “I didn't laugh.”But he said, “Yes you did.”“

The Rabbis use this incident as evidence that women are unqualified to bear witness. It should be noted here that this story narrated in Genesis 18:9-16 has been mentioned more than once in the Qur’an without any hint of lies by Sara :

“And certainlyOur messengers came to Ibrahim with good news. Theysaid: Peace. Peace, said he, and he made no delay in bringing a roasted calf.But when he saw that their hands were not extended towards it, he deemed them strange and conceived fear of them. Theysaid: Fear not, surely we are sent toLut's people.And his wife was standing (by), so she laughed, then We gave her the good news ofIshaq and afterIshaq of (a son's son)Yaqoub . Shesaid: O wonder!shall I bear a son when I am an extremely old woman and this my husband an extremely old man? Mostsurely this is a wonderful thing. Theysaid: Do you wonder at Allah's bidding? The mercy of Allah and His blessings are on you, O people of the house, surely He is Praised, Glorious. So when fear had gone away from Ibrahim and good news came to him, he began to plead withUs forLut's people”. (11:69-74)

“Has there come to you information about the honored guests of Ibrahim? When they entered upon him, theysaid: Peace. Peace, said he, a strange people. Then he turned aside to his family secretly and brought a fat (roasted) calf, so he brought it near them. Hesaid: What! Will you not eat?So he conceived in his mind a fear on account of them. Theysaid: Fear not.And they gave him the good news of a boy possessing knowledge. Then his wife came up in great grief, and she struck her face andsaid: An old barren woman! They said: Thus says your Lord: Surely He is the Wise, the Knowing.” (51:24-30).

In the Christian West, both ecclesiastical and civil law debarred women from giving testimony until late last century3 .

If a man accuses his wife ofunchastity , her testimonywill not be considered at all according to the Bible. The accused wife has tobe subjected to a trial by ordeal. In this trial, the wife faces a complex and humiliatingritual which was supposed to prove her guilt or innocence:

The LORD said to Moses, “Speak to the Israelites and tell them: If a man's wife goes astray and becomes unfaithful to him by having intercourse with another man, though her husband has not sufficient evidence of the fact, so that her impurity remains unproved for lack of a witness who might have caught her in the act; or if a man is overcome by a feeling of jealousy that makes him suspect his wife, whether she was actually impure or not: he shall bring his wife to the priest and shall take along as an offering for her a tenth of anephah of barley meal. However, he shall not pour oil on it nor put frankincense over it, since it is a cereal offering of jealousy, a cereal offering for an appeal in a question of guilt. “The priest shall first have the woman come forward and stand before the LORD. In an earthenvessel he shall meanwhile put some holy water, as well as some dust that he has taken from the floor of the Dwelling. Then, as the woman stands before the LORD, the priest shall uncover her head and place in her hands the cereal offering of her appeal, that is, the cereal offering of jealousy, while he himself shall hold the bitter water that brings a curse. Then he shall adjure the woman, saying to her, 'If no other man has had intercourse with you, and you have not gone astray by impurity while under the authority of your husband, be immune to the curse brought by this bitter water.But if you have gone astray while under the authority of your husband and have acted impurely by letting a man other than your husband have intercourse with you'-- so shall the priest adjure the woman with this oath of imprecation--'may the LORD make you an example of malediction and imprecation among your people by causing your thighs to waste away and your belly to swell! May this water, then, that brings a curse,enter your body to make your belly swell and your thighs waste away!'And the woman shall say, 'Amen, amen!' The priest shall put these imprecations in writing and shall then wash them off into the bitter water, which he is to have the woman drink, so that it may go into her withall its bitter curse.But first he shall take the cereal offering of jealousy from the woman's hand, and having waved this offering before the LORD, shall put it near the altar, where he shall take a handful of the cereal offering as its token offering and burn it on the altar. Only then shall he have the woman drink the water. Once she has done so, if she has been impure and unfaithful to her husband,this bitter water that brings a curse will go into her, and her belly will swell and her thighs will waste away, so that she will become an example of imprecation among her people.If, however, the woman has not defiled herself, but is still pure, she will be immune and will still be able to bear children. “This, then, is the law for jealousy: When a woman goes astray while under the authority of her husband and actsimpurely, or when such a feeling of jealousy comes over a man that he becomes suspicious of his wife, he shall have her stand before the LORD, and the priest shall apply this law in full to her. The man shall be free from guilt, but the woman shall bear such guilt as she may have.” (Num. 5:11-31)

If sheis found guilty after this ordeal, she will be sentenced to death. If sheis found not guilty, her husband will be innocent of any wrongdoing.

Besides, if a man takes a woman as a wife and then accuses her of not being a virgin, her own testimony will not count. Her parents had to bring evidence of her virginity before the elders of the town. If the parents could not prove the innocence of their daughter, she would be stoned to death on her father's doorsteps. If the parents were able to prove her innocence, the husbandwould only be fined one hundred shekels of silver and he could not divorce his wife as long as he lived:

“If a man takes a wife and, after lying with her, dislikes her and slanders her and gives her a bad name, saying, 'I married this woman, but when I approached her, I did not find proof of her virginity,' then the girl's father and mother shall bring proof that she was a virgin to the town elders at the gate. The girl's father will say to the elders, 'I gave my daughter in marriage to this man, but he dislikes her. Now he has slandered her and saidI did not find your daughter to be a virgin. But here is the proof of my daughter's virginity.' Then her parents shall display the cloth before the elders of the town, and the elders shall take the man and punish him. They shall fine him a hundred shekels of silver and give them to the girl's father, because this man has given an Israelite virgin a bad name. She shall continue to be his wife; he must not divorce her as long as he lives. If, however, the charge is true and no proof of the girl's virginitycan be found , she shall be brought to the door of her father's house and there the men of the town shall stone her to death. She has done a disgraceful thing in Israel by being promiscuous while still in her father's house. You must purge the evil from among you.” (Deuteronomy 22:13-21)

Notes

1.Swinder , op. cit., p. 115.

2. Lesley Hazelton, Israeli Women. The RealityBehind the Myths. (New York: Simon and Schuster, 1977), p. 41.

3. Matilda J. Gage, Woman,Church and State (New York: Truth Seeker Company, 1983) p. 142.

Adultery

Adulteryis considered a sin in all religions.

The Bible decrees the death sentence for both the adulterer and theadulteress :

“If a man commits adultery with hisneighbour's wife, both the adulterer and the adulteress shall be put to death.” (Lev. 20:10)

Islam also equally punishes both the adulterer and theadulteress :

“(As for) thefornicatress and the fornicator, flog each of them, (giving) a hundred stripes, and let not pity for them detain you in the matter of obedience to Allah, if you believe in Allah and the last day, and let a party of believers witness their chastisement.” (24:2)

However, theQur’anic definition of adultery is very different from the Biblical definition. Adultery, according to the Qur’an, is the involvement of a married man or a married woman in an extramarital affair. The Bible only considers the extramarital affair of a married woman as adultery.

“If a man is found sleeping with another man's wife, both the man who slept with her and the woman must die. You must purge the evil from Israel” (Deuteronomy 22:22)

“If a man commits adultery with another man's wife both the adulterer and the adulteress must be put to death.” (Leviticus 20:10)

“To keep you from yourneighbour's wife, from the smooth tongue of the adulteress. Lust not in your heart after herbeauty, let her not captivate you with her glance! For the price of a loose woman may be scarcely a loaf of bread, But if she is married, she is a trap for your precious life. Can a man take fire to his bosom, and his garments not burned?Or can a man walk on live coals, and his feet not be scorched? So with him who goes in to hisneighbour's wife-- none who touches her shall go unpunished.” (Proverbs, 6:24-:29)

According to the Biblical definition, if a married man sleeps with an unmarried woman, thisis not considered a crime at all. The married man who has extramarital affairs with unmarried women is not an adulterer and the unmarried women involved with him are notadulteresses . The crime of adultery is committed only when a man, whether married or single, sleeps with a married woman. In thiscase the man is considered adulterer, even if he is not married, and the woman is considered adulteress. In short, adultery is any illicit sexual intercourse involving a married woman. The extramarital affair of a married man is not per se a crime in the Bible.

Why is the dual moral standard? According toEncyclopaedia Judaica , the wife was consideredto be the husband's possession and adultery constituted a violation of the husband's exclusive right to her; the wife as the husband's possession had no such right to him.1

That is, if a man had sexual intercourse with a married woman, he would be violating the property of another man and, thus, heshould be punished . To the present day in Israel, if a married man indulges in an extramarital affair with an unmarried woman, his children by that womanare considered legitimate.But , if a married woman has an affair with another man, whether married or not married, her children by that man are not only illegitimate but they are considered bastards and are forbidden to marry any other Jews except converts and other bastards. This banis handed down to the children's descendants for ten generations until the taint of adultery is presumably weakened.2

The Qur’an, on the other hand, never considers any woman to be the possession of any man. The Qur’an eloquently describes the relationship between the spouses by saying:

“And among His signs is that He created for you mates from among yourselves, that you may dwell intranquillity with them and He has put love and mercy between your hearts: verily in that are signs for those who reflect.” (30:21)

This is theQur’anic conception of marriage: love, mercy, andtranquillity , not possession and double standards.

Notes

1. Jeffrey H.Togay , “Adultery”, Encyclopaedia Judaica , Vol. II, col. 313.Also see JudithLaskow , Standing Again at Sinai: Judaism from a Feminist Perspective (New York: Harper & Row Publishers, 1990) pp. 170-177.

2.Swidler , op. cit. p. 141.

Vows

According to the Bible, a man mustfulfil any vows he might make to God. He must not break his word. On the other hand, a woman's vow is not necessarily binding on her. It has tobe approved by her father, if she is living in his house, or by her husband, if she is married. If a father/husband does not endorse his daughter's/wife's vows, all pledges made by her becomenull and void :

“But if her father forbids her when he hears about it, none of her vows or the pledges by which she obligated herself willstand .... Her husband may confirm or nullify any vow she makes or any sworn pledge to deny herself.” (Num. 30:2-15)

Why is it that a woman's word is not binding per se? The answer is simple: becauseshe is owned by her father, before marriage, or by her husband after marriage. The father's control over his daughter was absolute to the extent that, should he wish, he could sell her! It is indicated in the writings of the Rabbis that: “The man may sell his daughter, but the woman may not sell her daughter; the man may betroth his daughter, but the woman may not betroth her daughter.” 1

The Rabbinic literature also indicates that marriage represents the transfer of control from the father to the husband: “betrothal, making a woman the sacrosanct possession -- the inviolable property -- of the husband...” Obviously, if the woman is consideredto be the property of someone else, she cannot make any pledges that her owner does not approve of.

It is of interest to note that this Biblical instruction concerning women's vows has had negative repercussions onJudaeo -Christian womentill early in this century. A married woman in the Western world had no legal status. No act of hers was of any legal value. Her husband could repudiate any contract, bargain, or deal she had made. Women in the West (the largest heir of theJudaeo -Christian legacy)were held unable to make a binding contract because they were practically owned by someone else. Western women had suffered for almost two thousand years because of the Biblical attitude towards women's position vis-à-vis their fathers and husbands.2

In Islam, the vow of every Muslim, male or female, is binding on him/her. No one has the power to repudiate the pledges of anyone else. Failure to keep a solemn oath, made by a man or a woman, has tobe expiated as indicated in the Qur’an:

“He [God] will call you to account for your deliberate oaths: for expiation, feed ten indigent persons, on a scale of the average for the food of your families; or clothe them; or give a slave his freedom. If that is beyond your means, fast for three days.That is the expiation for the oaths you have sworn. But keep your oaths.” (5:89)

Companions of the Prophet Muhammad (S), men and women, used to present their oath of allegiance to him personally. Women, as well as men, would independently come to him and pledge their oaths:

“O Prophet! When believing women come to you to make a covenant with you that they will not associate in worship anything with God, nor steal, nor fornicate, nor kill their own children, nor slander anyone, nor disobey you in any just matter, then make a covenant with them and pray to God for the forgiveness of their sins. Indeed God isForgiving and most Merciful.” (60:12)

A man could not swear the oath on behalf of his daughter or his wife. Nor could a man repudiate the oath made by any of his female relatives.

Notes

1.Swidler , op. cit. p. 141.

2. Gage, op. cit., p.141

Wife's Property

The Jewish tradition regarding the husband’s role towards his wife stems from the conception that he owns her as he owns his slave.1

This conception has been the reason behind the double standard in the laws of adultery and behind the husband’s ability to annul his wife’s vows. This conception has also been responsible for denying the wife any control over her property or her earnings. As soon as a Jewish woman got married, she completely lost any control over her property and earnings to her husband. Jewish Rabbis asserted the husband’s right to his wife’s property as a corollary of his possession of her: “Since one has come into the possession of the woman does it not follow that he should come into the possession of her property too?”, and “Since he has acquired the woman should he not acquire also her property?” 2

Thus, marriage caused the richest woman to become practically penniless. The Talmud describes the financial situation of a wife as follows:

“How can a woman have anything; whatever is hers belongs to her husband? What is his is his and what is hersis also his... Her earnings, and what she may find in the streets, are also his. The household articles, even the crumbs of bread on the table, are his. Should she invite a guest to her house and feed him, she would be stealing from her husband...”

(San. 71a,Git . 62a)

The fact of the matter is that the property of a Jewish femalewas meant to attract suitors. A Jewish family would assign their daughter a share of her father’s estate tobe used as a dowry in case of marriage.It was this dowry that made Jewish daughters an unwelcomed burden to their fathers. The father had to raise his daughter for years and then prepare for her marriage by providing a large dowry. Thus, a girl in a Jewish family was a liability and no asset.3

This liability explains why the birth of a daughterwas not celebrated with joy in the old Jewish society (see the “Shameful Daughters” section). The dowry was the wedding gift presented to the groom under terms of tenancy. The husband would act as the practical owner of the dowry but he could not sell it. The bride would lose any control over the dowryat the moment of marriage. Moreover, she was expected to work after marriage and all her earnings had to go to her husband in return for hermaintenance which was his obligation. She could regain her property only in two cases: divorce or her husband’s death. Should she die first, he would inherit her property. In the case of the husband’s death, the wife could regain her pre-marital property but she was not entitled to inherit any share in her deceased husband’s own property. It has to be added that the groom also had to present a marriage gift to hisbride, yet again he was the practical owner of this gift as long as they were married.4

Christianity, until recently, has followed the same Jewish tradition. Both religious and civil authorities in the Christian Roman Empire (after Constantine) required a property agreement as a condition for recognizing the marriage. Families offered their daughters increasing dowries and, as a result, men tended to marry earlier while families postponed their daughters’ marriages until later than had been customary.5

Under Canon law, a wife was entitled to restitution of her dowry if the marriagewas annulled unless she was guilty of adultery. In this case, she forfeited her right to thedowry which remained in her husband’s hands.6

Under Canon and civillaw a married woman in Christian Europe and America had lost her property rights until late nineteenth and early twentiethcenturies . For example, women’s rights under English lawwere compiled and published in 1632 . These ‘rights’ included: “That which the husband hath is his own. That which the wife hath is the husband’s.” 7

The wife not only lost her property upon marriage, she lost her personality as well. No act of her was of legal value. Her husband could repudiate any sale or gift made by her as being of no binding legal value. The person with whom she had any contractwas held as a criminal for participating in a fraud. Moreover, she could not sue orbe sued in her own name, nor could she sue her own husband.8

A married womanwas practically treated as an infant in the eyes of the law. The wife simply belonged to her husband and therefore she lost her property, her legal personality, and her family name.9

Islam, since the seventh century C.E., has granted married women the independentpersonality which theJudaeo -Christian West had deprived them until very recently. In Islam, the bride and her family are under no obligation whatsoever to present a gift to the groom. The girl in a Muslim family is no liability.

A womanis so dignified by Islam that she does not need to present gifts in order to attract potential husbands.It is the groom who must present the bride with a marriage gift. This giftis considered her property and neither the groom nor the bride’s family have any share in or control over it. In some Muslim societies today, a marriage gift of a hundred thousand dollars in diamonds is not unusual.10

The bride retains her marriage gifts even if she is later divorced. The husbandis not allowed any share in his wife’s property except what she offers him with her free consent.11

The Qur’an has stated its position on this issue quite clearly:

“And give the women (on marriage) their dower as a free gift; but if they, of their own good pleasure, remit any part of it to you, take it and enjoy it with right good cheer.” (4:4)

The wife’s property and earnings are under her full control and for her use alone since her, and the children’s, maintenance is her husband’s responsibility.12

No matter how rich the wife might be, she is not obliged to act as a co-provider for the family unless she herself voluntarily chooses to do so. Spouses do inherit from one another. Moreover, a married woman in Islam retains her independent legal personality and her family name.13

An American judge once commented on the rights of Muslim womensaying: “A Muslim girl may marry ten times, but her individuality is not absorbed by that of her various husbands. She is a solar planet with a name and legal personality of her own.” 14

The three religions share an unshakeable belief in the importance of marriage and family life. They also agree on the leadership of the husband over the family. Nevertheless, blatant differences do exist among the three religions with respect to the limits of this leadership. TheJudaeo -Christian tradition, unlike Islam, virtually extends the leadership of the husband into ownership of his wife.

Notes

1. Louis M. Epstein,The Jewish Marriage Contract (New York: Arno Press, 1973) p. 149.

2.Swidler , op. cit., p. 142.

3. Epstein, op. cit., pp. 164-165.

4. Ibid., pp. 112-113. See alsoPriesand , op. cit., p. 15.

5. James A.Brundage , Law, Sex, and Christian Society in Medieval Europe (Chicago: University of Chicago Press, 1987) p. 88.

6. Ibid., p. 480.

7. R. Thompson, Women in Stuart England and America (London:Routledge &Kegan Paul, 1974) p. 162.

8. Mary Murray,The Law of the Father (London:Routledge , 1995) p. 67.

9. Gage, op. cit., p. 143.

10. For example, see Jeffrey Lang, Struggling to Surrender, (Beltsville, MD: Amana Publications, 1994) p. 167.

11.Elsayyed Sabiq ,Fiqh alSunnah (Cairo:Darul Fatahlile’lam Al-Arabi , 11th edition, 1994), vol. 2, pp. 218-229.

12. Abdel-Haleem AbuShuqqa ,Tahreer alMar’aa fi Asr alRisala (Kuwait: Dar alQalam , 1990) pp. 109-112.

13. LeilaBadawi , “Islam”, in Jean Holm and JohnBowker , ed., Women in Religion (London: Pinter Publishers, 1994) p. 102.

14. Amir H.Siddiqi , Studies in Islamic History (Karachi:Jamiyatul Falah Publications, 3rd edition, 1967) p. 138.

Divorce

The three religions have remarkable differences in their attitudes towards divorce. Christianity abhors divorce altogether. The New Testament unequivocally advocates the indissolubility of marriage. Itis attributed to Jesus to have said,

“But I tell you that anyone who divorces his wife, except for marital unfaithfulness, causes her to become adulteress, and anyone who marries the divorced woman commits adultery.” (Matthew 5:32)

This uncompromising ideal is, without a doubt, unrealistic. It assumes a state of moral perfection that human societies have never achieved. When a couple realizes that their married life is beyond repair, a ban on divorce will not do them any good. Forcing ill-mated couples to remain together against their wills is neither effective nor reasonable. No wonder thewhole Christian world has been obliged to sanction divorce.

Judaism, on the other hand, allows divorce even without any cause. The Old Testament gives the husband the right to divorce his wife even if he just dislikes her:

“If a man marries a woman who becomes displeasing to him because he finds something indecent about her, and he writes her a certificate of divorce, gives it to her and sends her from his house, and if after she leaves his house she becomes the wife of another man, and her second husband dislikes her and writes her a certificate of divorce, gives it to her and sends her from his house, or if he dies, then her first husband, who divorced her, is not allowed to marry her again after she has been defiled.”(Deut. 24:1-4)

The above verses have caused considerable debate among Jewish scholars because of their disagreement over the interpretation of the words “displeasing”, “indecency”, and “dislikes” mentioned in the verses. The Talmud records their different opinions:

“The school ofShammai held that a man should not divorce his wife unless he has found her guilty of some sexual misconduct, while the school of Hillelsay he may divorce her even if she has merely spoiled a dish for him. RabbiAkiba says he may divorce her even if he simply finds another woman more beautiful than she.” (Gittin 90 a-b)

The New Testament follows theShammaites opinion while Jewish law has followed the opinion of theHillelites and R. Akiba1 . Since theHillelites view prevailed, it became the unbroken tradition of Jewish law to give the husband freedom to divorce his wife without any cause at all. The Old Testament not only gives the husband the right to divorce his “displeasing” wife, it considers divorcing a “bad wife” an obligation:

“A bad wife brings humiliation, downcast looks, and a wounded heart. Slack of hand and weak of knee is the man whose wife fails to make him happy. Woman is the origin of sin, and it is through her that we all die. Do not leave a leaky cistern to drip or allow a bad wife to say what she likes. If she does not accept your control, divorce her and send her away.” (Ecclesiasticus 25:25)

The Talmud has recorded several specific actions bywives which obliged their husbands to divorce them:

“If she ate in the street, if she drank greedily in the street, if she suckled in the street, in every case Rabbi Meir says that she must leave her husband”(Git . 89a)

The Talmud has also made it mandatory to divorce a barren wife (who bore no children in a period of ten years):

“Our Rabbis taught: If a man took a wife and lived with her for ten years and she bore no child, he shall divorce her” (Yeb . 64a)

Wives, on the other hand, cannot initiate divorce under Jewish law. A Jewish wife, however, could claim the right to a divorce before a Jewish courtprovided that a strong reason exists. Very few groundsare provided for the wife to make a claim for a divorce. These groundsinclude: A husband with physical defects or skin disease, a husband not fulfilling his conjugal responsibilities, etc. The Court might support the wife’s claim to a divorce but it cannot dissolve the marriage.

Only the husband can dissolve the marriage by giving his wife a bill of divorce. The Court could scourge, fine, imprison, and excommunicate him to force him to deliver the necessary bill of divorce to his wife. However, if the husband is stubborn enough, he can refuse to grant his wife a divorce and keep her tied to him indefinitely. Worse still, he can desert her without granting her a divorce and leave her unmarried andundivorced . He can marry another woman or even live with any single woman out of wedlock and have children from her (these childrenare considered legitimate under Jewish law).

The deserted wife, on the other hand, cannot marry any other man since she is still legally married and she cannot live with any other man because she will be considered anadulteress and her children from this union will be illegitimate for ten generations. A woman in such a position is called anagunah (chained woman).2

In the United States today there are approximately 1000 to 1500 Jewish women who areagunot (plural foragunah ), while in Israel their number might be as high as 16000. Husbands may extort thousands of dollars from their trapped wives in exchange for a Jewish divorce.3

Islam occupies the middle ground between Christianity and Judaism with respect to divorce. Marriage in Islam is a sanctified bond that should not be broken except for compelling reasons. Couplesare instructed to pursue all possible remedies whenever their marriages are in danger. Divorce is not to be resorted to except when there is no other way out.In a nutshell , Islam recognizes divorce, yet it discourages it by all means.

Let us focus on the recognition side first. Islam does recognize the right of both partners to end their matrimonial relationship. Islam gives the husband the right forTalaq (divorce). Moreover, Islam, unlike Judaism, grants the wife the right to dissolve the marriage through what is known as Khula’.4

If the husband dissolves the marriage by divorcing his wife, he cannot retrieve any of the marriage gifts he has given her. The Qur’an explicitly prohibits the divorcing husbands from taking back their marriage gifts no matter how expensive or valuable these gifts might be:

“But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit of it back; would you take it by slander and a manifest wrong?” (4:20)

In the case of the wife choosing to end the marriage, she may return the marriage gifts to her husband. Returning the marriage gifts in this case is a fair compensation for the husband who is keen to keep his wife while she chooses to leave him. The Qur’an has instructed Muslim men not to take back any of the gifts they have given to their wives except in the case of the wife choosing to dissolve the marriage:

“It is not lawful for you (Men) to take back any of your gifts except when both parties fear that they would be unable to keep the limits ordained by Allah. There is no blame on either of them if she gives something for her freedom. These are the limits ordained by Allah so do not transgress them.” (2:229)

Let us now focus our attention on how Islam discourages divorce. The Prophet of Islam told the believers that:

“Among all the permitted acts, divorce is the most hateful to God” (AbuDawood )

A Muslim man should not divorce his wife just because he dislikes her. The Qur’an instructs Muslim men to be kind to their wives even in cases of lukewarm emotions or feelings of dislike:

“Live with them (your wives) on a footing of kindness and equity. If you dislike them it may be that you dislike something in which Allah has placed a great deal of good.” (4:19)

The Prophet has also emphasized that the best Muslims are those who are best to their wives:

“The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives.” (Tirmidhi )

However, Islam is a practical religion and it does recognize that there are circumstances in which a marriage comes to the verge of collapsing. In such cases, a mere advice of kindness orself restraint is no viable solution.So, what to do in order to save a marriage in these cases?

The Qur’an offers some practical advice for the spouse (husband or wife) whose partner (wife or husband) is the wrongdoer. For the husband whosewife’s ill-conduct is threatening the marriage, the Qur’an gives four types of advice as detailed in the following verses:

“As to those women on whose part you fear disloyalty and ill-conduct,

(1) Admonish them,

(2) refuse to share their beds,

(3)beat them; but if they return to obedience seek not against them means of annoyance: For Allah is Most High, Great.

(4) If you fear a break between them, appoint two arbiters, one from his family and the other from hers;If they wish for peace, Allah will cause their reconciliation.”

(4:34-35)

The first three are tobe tried first. If they fail, then the help of the families concernedshould be sought . It has tobe noted , in the light of the above verses, that beating the rebellious wife is a temporary measure that is resorted to as third in line in cases of extreme necessity in hopes that it might remedy the wrongdoing of the wife.5

If it does, the husbandis not allowed by any means to continue any annoyance to the wife as explicitly mentioned in the verse. If it does not, the husbandis still not allowed to use this measure any longer and the final avenue of the family-assisted reconciliation has to be explored.

Prophet Muhammad (S) has instructed Muslim husbands that they should not have recourse to these measures except in extreme cases such as open lewdness committed by the wife.

It has tobe noted that the Talmud sanctions wife beating as chastisement for the purpose of discipline.6

The husband is not restricted to the extreme cases such as those of open lewdness. He is allowed to beat his wife even if she just refuses to do herhouse work . Moreover, he is not limited only to the use of light punishment. Heis permitted to break his wife’s stubbornness by the lash or by starving her.7

For the wife whosehusband’s ill-conduct is the cause for the marriage’s near collapse, the Qur’an offers the following advice:

“If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best.” (4:128)

Notes

1. Epstein, op. cit., p. 196

2.Swidler , op. cit., pp. 162-163.

3. The Toronto Star, Apr. 8, 1995.

4.Sabiq , op. cit., pp. 318-329. See also Muhammad alGhazali ,Qadaya alMar’aa bin alTaqaleed alRakida wal Wafida (Cairo: Dar alShorooq , 4th edition, 1992) pp. 178-180.

5. There is a strict limit to this. Refer to books of jurisprudence for further details.

6. Epstein, op. cit., p. 219.

7. Ibid, pp 156-157.