Traditional Shi`ite Perspectives: Muttaheri

The following are excerpts and opinions—from written essays and public speeches—of one of the most influential Shi`ite scholars.  Murtaza Mutahheri[9] who is accredited by many to be the one-man think tank that provided the Islamic Revolution of Iran with its ideological vision for establishing a modern state based on traditional principles.

Marriage before Birth

One day, during his last pilgrimage, while the Prophet was riding and had a whip in his hand, a man approached him on the way and said:
"I have a complaint to make".
"Yes, what's the matter?"
"Years ago, during the pre-Islamic days, Tariq Ibn Murqa'a and I took part in a battle. During the fighting he came to require a lance and cried: "Is there anybody who will give me a lance and take a reward?" I went to him and asked him what reward he would give. He said that he would bring up for me the first daughter that was born to him. Since then years have passed. Recently, on inquiring, I found out that he has a grown up daughter in his house. I went to him and reminded him of the promise. But he went back on his promise and demanded a fresh dower. Now I have come to you to find out whether he is right, or I am right".
How old is the girl?"
"The girl is grown up. Grey hair has also appeared on her head".
"If you ask me, neither you nor Tariq is right. Go after your business and leave the girl alone".
The man was taken aback at this reply and stared at the Prophet for several moments. He wondered what sort of verdict it was. Even if he paid a fresh dower to the girl's father and he willingly gave his daughter to him, still the deal was not proper.
The Prophet observed his wondering looks and said: "Don't worry. If you do things the way I have told you, neither you nor your friend, Tariq, will be doing anything wrong".
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Exchange of Daughters

During the pre-Islamic days there was a form of marriage in vogue in Arabia under the name of Shighar marriage, (exchange of daughters) which was a manifestation of the absolute authority of the fathers over their daughters. A man would give his daughter in marriage to another man in consideration of the latter giving his daughter in marriage to him. In such a form of marriage neither of the wives would get a dower. Islam abolished this custom. It is worth noting that the Prophet allowed full liberty to his daughter Fatimah Zahra (Peace be upon her) in choosing her husband.

He gave in marriage several other daughters also, but he did not deprive them of their freedom. When Ali Ibn Abi Talib, (peace be on him), approached the Prophet, seeking Fatimah's hand, the Prophet said that several other people had already approached him and that he had conveyed their proposals to Fatimah, but she turned her face away, as a mark of disapproval. The Prophet assured Ali that he would convey to her his proposal as well.

The Prophet went to Fatimah and told his beloved daughter what Ali wanted. This time she did not turn her face away, but kept quiet and thus expressed her consent. When the Prophet came out, he was happy. He exclaimed, "God is the Greatest!"

The Islamic Movement for Women's Liberation

Islam has done a great service to women. It not only put an end to the absolute control of the fathers, but also gave women freedom, a personality and independence of thinking and opinion.

It officially recognized her natural rights. However, there are two basic differences between the steps taken by Islam and what is happening in the West and is being followed by others.

The first difference concerns the psychology of man and woman. Islam has done and revealed wonders in this respect. We shall further discuss this question in the subsequent chapters.

The second difference is that, while Islam made the women aware of their rights and gave them an identity, a personality, freedom and independence; it did not instigate them to revolt and harbor malice against the male persons.

The Islamic movement for women's liberation was white. It was neither black nor red; neither blue nor violet. It did not put an end to the respect in which the daughters held their fathers and the wives their husbands. It did not upset the basis of the family life and did not make women suspicious of their responsibilities in regard to their fathers and husbands. It did not provide any opportunity to the unmarried men who are always after enticing women. It did not snatch away the wives from their husbands and the daughters from their parents and did not hand them over to the sensual executives and the moneyed magnates. It has done nothing similar to what has caused a hue and cry across the oceans that the sacred family system has broken into pieces. There the paternal protection has vanished. No one knows what to do with all the corruption that is rampant, with the ever-growing cases of infanticide and abortion, with 40 per cent illegitimate children and with those new-born infants whose fathers are not known and whose mothers do not want to have anything to do with them, because they were not born in lawful wedlock. The mothers of such children simply hand them over to some social organizations and then never come back to inquire about them.

No doubt, we in our country are in need of a movement for women's liberation, but what we need is a clean Islamic white movement and not a movement of the European brand with a dark and gloomy taint. We want a movement in which sensual young men should have lesser part and which should spring directly from the lofty teachings of Islam and be based on the deep and logical study of the Muslim society.

The Father's Permission

The question, which needs examination from the point of view of the authority exercised by fathers over their daughters, is whether the father's consent is essential in the case of a maiden's first marriage.

From the Islamic point of view certain things are indisputable.

The boy and the girl both are economically independent. Every sane adult is entitled to have full control of his or her property, provided he or she is mentally matured, that is, capable of taking care of himself or herself. A father, a mother, a husband or a brother has no power of supervision or intervention in this respect.

Another point, which is indisputable, relates to marriage. The adult and mature boys have full liberty in this respect and nobody else has any right of intervention. The position of the girl, who has been married once and is now without a husband, is the same. But the case of a maiden, who wants to marry for the first time, is a little different.

It is beyond any doubt that the father cannot force even a maiden to marry any person against her will. We already know what the Prophet told the girl whom her father had given in marriage, without taking her consent. The Prophet said that if she was not happy, she could marry someone else. But there exists a difference of opinion among the jurists as to whether a maiden can contract a marriage without the consent of her father and whether the validity of her marriage is in any way conditional to the consent of her father.

There is one more point about which there is absolutely no dispute. If the father withholds his consent without a sound reason, he loses his right. The jurists are unanimous that in such a case the daughter is free to contract a marriage with anyone of her choice.

But otherwise, as we have pointed out, the jurists differ on the point, whether the validity of the marriage of a maiden depends on the consent of her father. Most of the jurists, especially the later ones, are of the view that it does not. But still there are some who are of the opinion that it does.

This being a disputed point, it is not possible to discuss it from the Islamic point of view. Anyhow it can be discussed from a social point of view.

Adjustment or Abrogation

The second point worth mentioning here is that some people have solved the difficult problem of “Islam and the requirements of time” in a very simple and easy way. They say that Islam is an everlasting religion, and it can be adjusted to every age and every time. But when asked how this adjustment takes place and what its formula is, they at once say that when the circumstances change, the existing laws are repealed and replaced by other laws. They argue that the temporal laws of religion must be flexible and in harmony with the progress of knowledge and science and the expansion of culture and civilization. According to them, such flexibility and adjustability to the requirements of time conform to the spirit of Islam and are not against its teachings.

They hold that, as the requirements of time are always changing, every age demands a new set of laws. They further hold that the civil and social laws of Islam are in conformity with the simple life of the pre-Islamic Arabs, and are mostly based on their customs and usages. As they are not compatible with the present age, modern laws should replace them.

Such people should be asked: If adjustability means capability of being repealed, which law does not have this type of flexibility? Is there any law which is not compatible with time in this sense?

This interpretation of flexibility and applicability to all times is exactly like saying that books and libraries are the best means of enjoying life, because whenever one wants enjoyment, one can sell them and spend the money so obtained, on the gratification of one's desires.

An Iranian writer says that the teachings of Islam are divided into three parts. The first part consists of basic doctrines, such as Divine Unity, Prophethood, and Resurrection etc. The second part is related to the acts of worship such as prayer, fasting, ablution, ritual cleaning, pilgrimage etc. The third part consists of the laws concerning the life of the people.

According to him only the first two parts are an integral part of religion, and something to be preserved forever. As far as the third part is concerned, it is not an integral part of religion, for religion is not concerned with the daily way of life of the people. The Prophet himself did not prescribe these laws as a part of religion, for they were not related to his mission as Messenger. It was only a chance that, as the Head of the State, he had to give some laws also. Otherwise, religion has nothing to do with the worldly life of the people.

It is hard to believe that a person living in a Muslim country should be so ignorant of the precepts of Islam.

Has not the Qur'an described the aim of the Prophets and the Apostles? Does not the Qur'an expressly say: "We have sent Our Messengers with clear proof and We have sent down with them the Book and the Balance, so that people may rise with justice" (Surah al-Hadid, 57 : 25). The Qur'an describes social justice as the main aim of all the Prophets.

If you like, you may not act on the teachings of the Qur'an, but why do you commit a bigger sin by bringing a calumny against Islam and the Qur'an? Most of our misfortunes are due to the fact that our morals and laws have lost their only source of strength, viz. religion.

It is only during the past half a century that we have come to hear the cry that Islam is good, provided it remains confined to the places of worship, and has nothing to do with the society. This cry has burst forth from across the frontiers of the Muslim countries, and has been propagated throughout the Muslim world.

To make the purpose of this cry clearer, it may be said that the idea behind it is that Islam should stay as a force to withstand the spread of communism, but when it clashes with the interests of the West, it must go. From the viewpoint of the West, the devotional rites of Islam must continue so that the Muslims, whenever need be, could be stirred up against the atheistic and godless system of communism, but the social rules of Islam which provide a philosophy of life to the Muslims must go, for these rules give the Muslims a sense of independence and separate identity, and prevent their being swallowed up by the greedy West.

Unfortunately, the exponents of the thesis that Islam is not concerned with the daily practical life have ignored certain basic facts.

Firstly, Islam, 1,400 years ago, depreciated the principle of, "We believe in certain things (some of the teachings of Islam) and reject the others", and proclaimed that the rules of Islam are irreversible.

Secondly, we believe that the time has come, when the Muslims should not be misled by such deceptive slogans. The critical sense of the people has now, more or less, been awakened, and gradually they are beginning to differentiate between the manifestations of progress and advancement, which are the outcome of the blooming of the scientific and intellectual forces, and the manifestations of corruption and perversion, though their source be in the West.

The people of the Muslim world have now, more than ever, become conscious of the value of the teachings of Islam, and have realized that they can lead an independent life only by following them. They are not going to give them up, at any cost.

The vigilant Muslims know that the propaganda against Islamic laws is nothing but an imperialistic fraud.

Thirdly, the exponents of this thesis should know that Islam, when powerful, withstands any other system, whether it is atheistic or not. Islam wants to dominate the society as a philosophy of life, and does not want to be confined to the 'masjids' and other places of worship. The Islam which will be restricted to the places of worship, will vacate the field, not only for the Western ideas, but it will vacate it for the anti-Western ideas and doctrines as well.

The penalty which the West is paying, in certain Muslim countries, is the result of its not realizing this fact.  (…)

A Parable of the Qur'an
Islam is a progressive religion and wants its followers to be progressive. The Qur'an has employed a parable to persuade the Muslims to keep marching forward, under the light of Islam. It says that the followers of Prophet Muhammad (P) are like a seed which is sown in the soil. First, it shoots out in the form of a tender seed leaf, then it grows stronger and stronger until it stands on its own stalk. It grows so rapidly that it causes great surprise to the farmers.

It is an analogy of the society which the Qur'an aims at. What the Qur'an desires is growth. The Qur'an wants to lay the foundation of a society, which should always be growing, developing and expanding.

Will Durant says that no religion has called upon its followers to gain strength as Islam has done. The history of early Islam shows how powerful a force Islam is to rebuild a society and to push it forward.

Islam is opposed to both rigidity and ignorance, and regards both of them as dangerous. The intellectual sterility of the rigid and their clinging to the old customs having no connection with Islam, have provided a pretext to the misinformed to consider Islam to be really opposed to modernity. On the other hand, the following and patronizing of the latest fashions and modes of the West by the misinformed, their belief that the prosperity of the people of the East depends on their complete westernization, both physically and spiritually, their acceptance of the habits, manners and traditions of the West, and the blind adaptation of their own civil and social laws to those of the Western nations, have provided a pretext to the rigid to look at everything new with suspicion and to regard it as a threat to their religion, to their independence and to the social personality of their community.

In the meantime, Islam has to pay the penalty for the mistake of both the parties.

The rigidity of the rigid has left the field open to the misinformed to play havoc, and the ignorance of the misinformed has made the rigid more stubborn in their beliefs.

It is surprising that these so called cultured, but really ignorant people, think that time is infallible. The fact is that all changes are brought about by man, and man is not infallible at all. Then how can it be presumed that the changes of time must necessarily be free from error.

Just as man has scientific, moral, aesthetic and religious inclinations, and constantly takes new measures for the benefit of humanity, he has certain negative tendencies also. He is selfish, power- hungry and pleasure-seeking. He loves money and exploitation. Just as he is capable of making new discoveries and finding better ways and means of doing things, he is liable to commit mistakes also. But the misguided and misinformed do not understand these things. They simply go on harping on the same tune and repeating that the modern world is like this, and like that.

What is more surprising is that they compare the principles of life to such things as a shoe, a cap and a dress. As these things are sought after when they are new, and thrown away when they get old and worn out, the same, according to them, should be the case with universal truths. To them, good and bad has no sense other than that of new and old. Feudalism is bad only because it has become old and has gone out of fashion. Otherwise, it was quite good when it was first introduced into the world.

Similarly, exploitation of women is bad only because it is disliked by the modern world; otherwise, until recently, these same people had not given her a share of inheritance. They had not recognized her right of ownership, and had not respected her will or views.

According to such people in the present age, being the space age, just as it is no longer possible to ride a donkey and leave aside the aircraft, light an oil lamp and not to use electricity, use a hand-spinning mills, and to write with hand and leave aside gigantic printing machines, it is not possible not to attend dance parties, swimming-costume parties and barbecue dinners, not to take part in merry-making, not to play poker and not to wear mini-skirts, for all these things are the phenomena of the present century. If they do not indulge in such things, they fear that they will go back to the days of donkey-riding.

They assert that this is the atomic age, the age of science, the age of the artificial moons and the age of ballistic missiles. That is very good! We also thank God that we are living in this age, and wish that we may be able to enjoy the benefits of science and industry to the utmost. But have all the springs, except that of science gone dry in this age? Are all the phenomena of this century an outcome of the modern scientific progress? Does science claim that it has brought nature under its complete control?

Science makes no such claim. The tragedy of our century is that a group of scientists, with good intentions, applies itself to making new discoveries, but another group of selfish and power- hungry opportunists and money-worshippers misuses the fruit of the scientists' labor to achieve its own questionable ends. Science complains constantly that it is misused by stubborn human nature and this is the misfortune of our age.

Science moves forward in the field of physics and discovers the laws of light and reflection, and an opportunist group uses them for the preparation of blue films of a hostile and destructive nature. Chemistry makes progress and discovers the properties of various substances and their combinations. Then certain individuals exploit this discovery for the preparation of heroin, which is a curse to humanity. Science found its way into the inside of the atom and brought a wonderful source of energy under its control, but before it could be used for the benefit of mankind, the power-hungry people hastened to make the atom bomb, and to drop it on innocent people.

When a reception was arranged in honor of Einstein, the great scientist of the 20th Century, he himself mounted the rostrum and said: "Do you honor the man who has been instrumental in the making of the atom bomb?"

Einstein himself did not exercise his knowledge for its making. It was others, who harnessed his discoveries for this purpose.

The use of heroin, the atom bomb and the blue films cannot be justified on the ground that they are among the phenomena of the present century.

If the latest type of bombers are used for throwing the most perfect bombs on the people of another country, and the most highly educated people are employed to perform this job, can all this modernity reduce the inherent barbarity of the act?

The Flexibility of Islamic Laws

The second point, to be made clear, is that the Muslim thinkers believe that Islam has certain potentialities which have made it applicable to all times. According to these thinkers, Islamic teachings are in harmony with the progress of time, the expansion of culture and the resulting changes. Let us see what is the nature of the potentialities which Islam has. In other words, let us see what devices have been put into the structure of this religion, and whether they have given it the characteristic of being in harmony with all the changing situations, without there being any need of dropping any of its teachings and without any conflict taking place between its teachings and any situation arising out of the expansion of knowledge and civilization.

Although this question has a technical aspect, in order to remove the misunderstanding of those who doubt that Islam has any such characteristic, we briefly deal with it here.

For further discussion of the subject, the readers may refer to Tanbihul Ummah by the late Ayatullah Naini, or to the Marja`iyyah wa Imamah by the great contemporary scholar, Allamah Tabataba’i. Both the books are, however in Persian.

There are many points, which form the secret of Islam being in harmony with the expansion of knowledge and civilization, and the applicability of its firm and stable laws to the varying circumstances of life. We mention here only a few of them.

Stability and Variance in Law

Another characteristic of Islam, which is of great importance, is that it has envisaged stable laws for the stable human requirements and varying laws for the varying requirements. A part of the human requirements, both individual and collective, is of a permanent nature. They do not undergo any change with the change of time. The principles of the systems regulating human instincts and social relations always remain uniform.

We are aware of the theories of the "Relativity of Morals" and the "Relativity of Justice" which have their supporters, and would express our views with regard to them, later.

Another part of the human requirement is of a varying nature and this demands varying laws. Islam has visualized such requirements, and has linked them with certain principles which have subordinate laws for every changed situation.

To elucidate this point, I give a few examples:

Islam has laid down a social principle which has been stated in the Qur'an thus: Provide force against them (the enemies) to the utmost possible extent [8: 60]. At the same time, a number of traditions of the Prophet handed down to us are mentioned in the books of Islamic law under the heading 'Horsemanship and Archery'. The Prophet directed that the Muslims should learn the arts of horsemanship and archery and teach them to their children. These arts were a part of military science in the ancient days. It is quite obvious that the basic order is 'to provide force'. Bow and arrow, sword and lance and mule and horse are not important. What is important is to be militarily powerful against the enemy. To acquire skill in horsemanship and archery is only a form of acquiring military strength, or a way of implementing the basic order. To provide strength is a standing law which has sprung from a permanent need. However the necessity of acquiring skill in horsemanship and archery is a temporary requirement, which varies with the change of time. With the changed circumstances, skill in firearms etc. has taken the place of skill in archery.

Another example is the social principle concerning the exchange of wealth, mentioned in the Qur'an. Islam has recognized the principle of individual ownership. However, the ownership as recognized by it is different from that found in the capitalist world. A characteristic of the individual ownership in Islam is the principle of exchange. In this connection, Islam has laid down certain rules. The Qur’an in these words has enunciated one of them. Do not consume each other's wealth in vain. [2: 188]. In other words, in the case of business transactions, money must not pass from one hand to another, except in exchange for some lawful return which has a recognized value. Islam does not admit that ownership is equivalent to absolute authority.

It is specified in the Islamic law that the sale and purchase of certain things is forbidden. Such things include blood and human excreta. The reason is that these things do not have such a value that they should be considered to be a part of human wealth. The underlying principle is the same as contained in the above quoted verse. The invalidity of the sale and the purchase of blood and human excreta is only an instance of the application of that principle. Even where no exchange is involved, money or property belonging to someone else cannot be appropriated and disposed of gratuitously.

The law forbidding the appropriation of another's property gratuitously is a firm principle which is applicable to all time, and has emerged from a permanent social need. But the rule that blood and excreta are not to be regarded as wealth and are not saleable is related to time and the degree of civilization. This rule is subject to modification with the change of conditions, the progress of science and industry and the possibility of the correct and useful utilization of these items.

Another example: Imam Ali (peace be on him) never dyed his hair, though it had become gray during the last years of his life. One day a man said to him: "Didn't the Prophet order gray hair to be covered with dye?" 'Yes, he did", Ali replied. "Then why don't you dye your hair?" the man asked. Ali said "At the time the Prophet gave that instruction the number of the Muslims was small, and there were many aged people who used to take part in the battles. The Prophet ordered them to dye their hair to conceal their real age, for if the enemy could see that he was faced with only a bunch of old men, his morale might have been raised. With the spread of Islam to the whole world, that situation has changed. Now every body is free to dye, or not to dye, his hair".

In the opinion of Imam Ali, the Prophet's instruction was not a basic and permanent law. It was only a way of implementing that law, which says that we should not do anything which might raise the morale of the enemy.

Islam attaches importance to the external appearance as well as to the inner spirit. But it wants the husk only for the sake of the kernel, and the garb only for the sake of the body.

The Laws Which Have a Right of Veto

Another aspect of Islam which has given this religion the characteristic of mobility and applicability to varying circumstances, and has kept it as a living and everlasting religion, is that within it there exists a body of laws whose object is to control and modify other laws. They are called by the jurists, 'the governing rules'.

The rule of "No harm" and "No loss", that a law will not apply to those cases in which it may cause hardship or harm the interests of an innocent person, pervades the entire legal system. The object of such rules is to control and modify other laws. In fact Islam has given a veto power to these rules which change other rules.

Powers of the Ruler

In addition, there is a further series of checks and balances which has given this religion the characteristic of finality. Ayatullah Na'ini and Allamah Tabataba’i have, in this respect, mostly relied on the powers delegated by Islam to the righteous Islamic government.

The Principle of Ijtihad

The Pakistani poet and philosopher, Iqbal, says that Ijtihad (the deducing of laws from their original sources) is the motivating force of Islam. He is right in saying so. But what is more important is that Islam has a special quality of being amenable to Ijtihad. No other religion possesses this quality in the same manner. The internal structure of Islam has been so designed that, with the aid of Ijtihad, it can always cope with the ever-changing pattern of the requirements of life.

Abu Ali Sina (Avicenna) in his book, al-Shifa, has based the need of Ijtihad on this very principle of ever-changing requirements. He says that conditions of life change constantly. New problems frequently crop up, but the fundamentals of Islam are constant and unalterable. Hence, in these circumstances, there should be some people who, with their full knowledge of all the points of law and precepts, may be able to answer all the questions which may arise from time to time, and thus meet the needs of the people.

The constitution of Iran provides that a body consisting of not less than five Mujtahids (eminent scholars of theology, capable of practicing Ijtihad) should keep a watch on the laws enacted by the State from time to time.

The idea is that such people, as are neither rigid and opposed to the modern developments, nor uninformed, blindly following others, should keep a watch on the legislative activity of the country.

It is worth mentioning that Ijtihad in the real sense means specializations and requires a deep insight into the fundamentals of Islam and a thorough knowledge of the principles of Islamic jurisprudence, which naturally cannot be claimed by everyone who might have passed some time in an Islamic academy.

No doubt, it is a lifetime job to specialize in the principles and precepts of Islam, and it requires Divine help besides a taste, a talent and a special aptitude.

Apart from specialization and Ijtihad, some people may acquire knowledge to the extent that their views may be regarded as authoritative. Such people must be pious and God-fearing to the utmost extent possible. The history of Islam mentions those people who, despite their vast knowledge and high morals, were cautious and fearful when they expressed their opinions, on points of law.

Woman in Qur'an
Now we propose to answer the question whether Islam regards woman equal to man as a human being, or regards her inferior to him.

The Special Philosophy of Islam in Respect Of Family Rights

With regard to the rights of man and woman, Islam has a special philosophy of its own which differs from what happened 1400 years ago and what is happening now. It does not believe that in all cases man and woman have the same rights and obligations. In certain cases their rights and obligations are different, with the result that in certain cases their position in this respect is similar, and in certain others dissimilar.

This is not because Islam, like some other schools of thought, looks at woman contemptuously or considers her to belong to an inferior sex. Islam differentiates between the two sexes for some other valid reasons.

You might have heard that the followers of the Western systems refer to the Islamic rules of dower, maintenance, divorce, polygamy and the like in a way, as if they were insulting to woman and derogatory to her position. They mislead the people into the belief that these rules are unreasonable and clearly in favor of man.

They say that during the entire period of history, prior to the 20th century, all laws and rules in the world were based on the presumption that man belonged to a superior sex and that woman was created for his benefit and enjoyment. The rights accorded by Islam also revolve round man's interests, and are no exception to the general rule.

They assert that Islam is the religion of the male sex. It does not recognize woman to be a full human being. That is why it has not accorded her equal rights. Had it recognized her as a full human being, it would not have allowed polygamy; it would not have given man the right of divorce; it would not have considered the evidence of two females equal to that of one male; it would not have fixed the share in inheritance of a female as half of the share of a male; it would not have ordered the naming of a price for woman under the name of dower, and would not have made woman dependent on man for maintenance, instead of making her economically and socially independent. The Islamic teachings in all these cases show that Islam looks at woman contemptuously. Islam claims to be a religion of equality but, at least in the case of family relations, no equality has been observed by it.

They maintain that in the matter of rights, Islam gives a clear preference to man, and that is why it has given all these concessions to him.

If we like we can put their argument into a logical form thus: Had Islam considered woman to be a full human being, it would have accorded her rights similar and equal to those of man; but as it has not done so, it does not consider her to be a full human being.

Equality or Similarity

This argument is based on the ground that human dignity being common to man and woman, they both must enjoy the same rights. In this connection, the point worth considering is whether on the basis of human dignity they both should have equal rights without any discrimination, or should have the same rights irrespective of their different roles in life. No doubt, human dignity being common to them, they both should have equal rights. But how about the similarity of their rights?

If, instead of blindly following the Western ideas, we allow ourselves some independent thinking, the first question which comes to mind is whether equality of rights does really mean their similarity also. In fact, they are two different beings. Equality means a condition of being equal in degree and value, whereas similarity means uniformity. It is possible that a father may distribute his wealth among his three children equally, but not uniformly. Suppose his wealth consists of several items such as a commercial store, some agricultural land and some property, which has been leased out. He, taking into consideration their respective tastes and aptitudes, gives the store to one, the agricultural land to another and the leased property to the third. He takes care that what he gives to each of them should be of fair value, and at the same time should suit their aptitude. Thus he distributes his wealth equally, but not uniformly.

Quantity is different from quality, and equality is different from uniformity. Islam does not believe in uniformity between man and woman. But at the same time it does not give preferential treatment to men, in the matter of rights. It has observed the principle of equality between man and woman, but it is opposed to the uniformity of their rights.

Equality is a charming word, for it implies a sense of indiscrimination. A particular sanctity is attached to it. It evokes respect, especially when it is associated with rights.

What a beautiful and sacred construction 'equality of rights' is! Any conscientious person is bound to succumb to its charm.

But we cannot understand how things have got to this extent that others who have once been the standard bearers of science and philosophy want to impose their ideas about the similarity of rights between men and women on us.

This is exactly as if a person sells boiled beets and gives to them the name of pears.

No doubt, Islam has not in all cases accorded similar rights to man and woman. But it has not also prescribed similar duties and similar punishments for the two sexes. Anyway, the total value of the rights accorded to woman is not less than that of the rights accorded to man. We propose to prove this point.

Here the question arises as to what is the reason that in certain cases dissimilar rights have been accorded to man and woman. Would it not have been better, had their rights been similar, as well as equal in all cases? To give full consideration to this point, we propose to discuss it under three headings:

(i) The Islamic view of the position of woman from the angle of her nature.

(ii) The effect of the physical disparity between man and woman. Does it make them dissimilar in the matter of rights also?

(iii) What is the philosophy behind the Islamic rules, which are in some cases different in respect of man and woman? is this philosophy still valid?

The Position of Woman in the Islamic Scheme

The Qur'an is not merely a collection of laws. It is not a body of dry rules and laws with no explanation of their ultimate aims. it contains laws, as well as history, religious exhortations, an explanation of the meaning of Creation, and thousands of other things. At certain places it sets forth a course of action in legal form, and at others it explains the meaning of existence. It unravels the mysteries of the earth, the heavens, the plants, the animals and the human beings. It gives out the secrets of life and death, honor and disgrace, rise and fall, wealth and poverty.

The Qur'an is not a book of philosophy, but it has expounded, in very definite terms, its views on the three basic subjects of philosophy: the world, man and society. It does not teach its followers law alone, and does not indulge in mere exhortation and admonition, but, also by its interpretation of Creation, gives its followers a special outlook and a peculiar way of thinking. The basis of the Islamic regulations regarding social matters like ownership, government, family rights etc. are its very interpretation of Creation and various things.

One of the subjects explained in the Qur'an is that of the creation of man and woman. The Qur'an has not observed silence in this respect. It has left no opportunity to the philosophical meddlers to invent their own philosophy for the rules concerning man and woman, and to describe them as being based on Islam's contemptuous attitude towards the fair sex. Islam has itself given its views regarding woman.

To know the views of Islam on woman, we should see what the Qur'an says about her innate character. Other religions also have referred to this question, but it is the Qur'an alone which in a number of verses expressly says that woman has been created of the species of man, and both man and woman have the same innate character. While referring to Adam it says: He (God) made all of you from one being, and from that being He made its mate. [4: 1]

With regard to mankind in general, it says: He made your mate from among you. (Surah al-Nisa, Surah Ali Imran and Surah Rum).

Unlike some other religious books, there is no mention in the Qur'an that woman has been created of some inferior material, or that she has any parasitic and leftist aspect. Islam does not support the notion of the people who suppose that the spouse of Adam was created of his left ribs. Islam has no contemptuous view of woman in regard to her nature and innate character.

There is another contemptuous theory which was current in the past, and has left some undesirable traces in the world literature. According to it, woman is the cause of all sins. Her very existence stimulates evil. Woman is a little devil. It is said that woman has had a hand in every sin and every offence committed by man. Men themselves are free from sin; it is the women who drag them to it. It is also said that the Devil cannot have direct access to men. It is through women that he lures them. He prompts woman with wicked suggestions, and woman in turn prompts man. Adam was thrown out of Paradise because of a woman. The Devil misled Eve, and it was Eve who misled Adam.

The Qur'an has narrated the story of Paradise, but it says nowhere that the Devil or the Serpent misled Eve and Eve misled Adam. It neither blames Eve nor exonerates her.

The Qur'an says: We said to Adam: 'Take residence in Paradise.' both you and your Spouse, and eat the fruits thereof, freely wherever you wish and go not near that tree else you become wrongdoers. [2:35]. It puts the pronouns in the dual form. It also says: Then the Satan made a suggestion to them (both). Then he led them (both) on with guile. He swore to them (both): I am a sincere adviser to you (both). [7: 20–21]

Thus the Qur'an vehemently opposed the false notion which was current after the time of its revelation, and the echoes of which still resound in various parts of the world, It absolved woman from the charge that she was the prompter of sin, and herself a little devil.

Another contemptuous theory which has existed concerns woman's spiritual position. It was asserted that woman could not enter Paradise. She could not cover the spiritual and divine stages. She could not reach such a stage of proximity to God as man could. But the Qur'an, in a number of passages, has expressly said that the reward of the Hereafter and the proximity to God are not linked with sex. They depend on faith and deeds, and there is no difference between man and woman in this respect. In the Qur'an, side by side with every great and saintly man, a great and saintly woman has been mentioned. It has glorified the wives of Adam and Abraham and the mothers of Moses and Jesus. If it has mentioned the wives of Noah and Lot as unworthy of their husbands, it has not ignored the wife of the Pharaoh, and has mentioned her as a great woman who was in the hands of a wicked man. The Qur'an in its stories has maintained a sort of balance. Its heroes are both men and women.

While referring to the mother of Moses, the Qur'an says:

We made Our Will known to Musa's mother saying.' Put him in a box and throw it into the river. The waves shall cast him on to the bank. [20: 39]

About the mother of Jesus, it says that she had attained such a high spiritual position that the angels used to talk to her while she was worshipping in the Sanctuary. She used to receive eatables from supernatural sources. Her sublime spiritual position caused bewilderment even to Zachariah, the Prophet of that period.

There have been many eminent and saintly women in the history of Islam. Few men can attain the high position of Khadija, the beloved wife of the Prophet, and no man, except the Prophet and Ali (P) can match with Zahra, the beloved daughter of the Prophet. She holds a position superior to that of even her sons, who are Imams, and to that of the Prophets, other than the last one. Islam does not discriminate between man and woman in the matter of the 'journey towards God', but it regards man more suitable for shouldering the responsibility of Prophethood, which can be described as a 'return journey from God' to the people.

Another contemptuous theory that exists about woman is related to renunciation and celibacy. Certain religions regard sexual relations as a dirty thing. According to the belief of their followers, only those can attain higher levels of spiritual life who pass their whole life in celibacy. A well-known world religious leader says: "Cut down the tree of marriage with the axe of virginity." Such religious leaders tolerate marriage only as a lesser evil. In other words, they maintain that as most of the people are unable to lead a life of celibacy, and there is an apprehension that they will be unable to control themselves, and so will become involved in illicit relations with a number of women, it is better that they marry so that they do not come into contact with more than one woman. These gentlemen advocate renunciation and celibacy because they look upon the fair sex with suspicion. They consider love for woman to be a great moral evil.

Islam is severely opposed to this absurdity. It reckons marriage as sacred and celibacy as dirty. To like woman has been described by Islam as a part of a prophetic character. The Prophet has said: "I am interested in three things: perfume, woman and prayer".

Bertrand Russell says: "All religions other than Islam look at sexual relations with a pinch of suspicion. Islam, with an eye to social interest, has regulated and restricted them, but has not regarded them as dirty"

Another contemptuous theory with regard to woman, which has existed, is that woman has been created for the benefit of man.

Islam does not say any such thing. It has stated the purpose of Creation in clear terms. It expressly says that the earth, the heavens, the air, the clouds, the plants and the animals, all have been created for the sake of mankind. It does not say that woman has been created for the sake of man. According to it, both man and woman have been created for the sake of each other. The Qur'an says: They (women) are raiment (comfort, embellishment and protection) for you, and you (men) are raiment for them. [2: 187]

Had the Qur'an stated that woman was a mere appendage of man, and was created for his sake, that view would certainly have been reflecte6 in the Islamic laws, but the Qur'an has expressed no such view. It does not explain Creation that way. It does not consider woman a mere appendage to man. That is why this view is not reflected in Islamic laws.

Another contemptuous theory about woman, which previously existed, is that woman is an inescapable evil. In the olden days, many people held her in great contempt and looked upon her as a source of misfortune and all sorts of trouble. In contrast, the Qur'an has emphasized that woman is a blessing for man and a source of his comfort and relief.

According to another contemptuous theory, little significance was attached to the role of woman in childbearing. Pre- Islamic Arabs and some other communities regarded woman just as a receptacle for keeping and developing the seed of man. The Qur'an in several of its passages has said, We have created you from a man and a woman. The same idea has been deduced from some other verses by the commentators of the Qur'an. Thus Islam has put an end to that wrong way of thinking.

It is clear from the above that Islam holds no contemptuous view of woman. Now the time has come to see why there is dissimilarity between the rights of man and woman.

Disparities between Man and Woman

This seems to be an odd phrase. It appears that though we are living in the 2nd half of the 20th century, yet there are some people, here and there, who have a medieval way of thinking, and still pursue the outdated idea of disparity between man and woman. Like the people of the medieval ages they are of the view that woman belongs to the inferior sex and that she is not a perfect human being. She is something betwixt and between man and animal. She is not fit to lead an independent life and must live under the supervision and control of man. But we know that all these ideas are outdated and obsolete. Today we know very well that man concocted the fake charge of imperfection against woman during the days of his ascendancy over her. Now, the proven fact is that woman belongs to the superior sex and man to the inferior one.

These are the views of some modern Westerners. In actual fact, the wonderful scientific progress of the 20th century has clearly proved the existence of disparities between man and woman. Their existence is not a malicious misrepresentation but a scientific truth, based on observation and experiment. Anyhow, these differences have nothing to do with the superiority or inferiority of either sex. The law of creation has ordained them simply to make the bond of conjugal relations firmer and to lay the foundation of the union between husband and wife deeper and better. Nature wanted to distribute family rights and obligations between them with its own hands. The law of creation has made the disparities between man and woman similar to the difference between the various organs of a body. If it has given a distinctive position to each one of the eyes, the ears, the hands, the feet and the spinal column, it does not mean that it has been unjust or has made any discrimination against any of them.


Dower and Maintenance

It is one of the most ancient traditions of the human family relations that at the time of marriage the man pays a dower (mahr) to the woman or to her father. In addition to that, he undertakes to bear the expenses of his wife and children during the entire period of his life.

What is the basis of this tradition? Why and how did it begin? Why should the husband be responsible for the maintenance of his wife? What is the spirit of dower? Are dower and maintenance still relevant, even if man and woman enjoy all human and natural rights, and the relations between them are based on justice and equity; or are they only the surviving remnants of the days when man owned woman? Does justice and the equality of rights, especially in the 20th century, demand that these outdated traditions should be abolished, a marriage should take place without a dower, woman should be responsible to bear her own expenses, and the children should be the joint responsibility of husband and wife?

We propose to answer these questions, and begin with the question of dower. Let us see how this tradition came into being, what its philosophy is and how the sociologists explain its origin…


The Dower in the Qur'an
The form of the dower described above in connection with the fifth stage is not an invention of the Qur'an. All that the Qur'an did was to restore it to its natural and pristine form. The Qur'an in its incomparably elegant style says: "Give to the women a free gift of their marriage portions". [4: 4] This means that the dower belongs to women exclusively and it is a gift to be paid directly to them. It has nothing to do with their fathers or brothers.

In this short sentence the Qur'an has referred to three basic points:

Firstly it has used for marriage portion or the dower the word, saduqatehinna meaning truthfulness and sincerity and not the word mehr. Thus, the dower is a symbol of the cordiality of the man paying it. This point has been expressly mentioned by a number of the commentators of the Qur’an, such as Zamakhshari, the author of the well-known commentary, the Kashshaf similarly, the famous philologist, Raghib Isfahani says in his lexicon of the Qur'an that the dower has been called saduqah because it is a symbol of the sincerity of faith. Secondly, it is clear from the above verse of the Qur'an that the dower is to be paid directly to the woman, and her parents have no claim to it. It is not a compensation for the efforts made by them to bring up their daughter. Thirdly, it is clear that the dower is nothing except a present and a gift.

Inheritance

In the ancient world woman inherited nothing and, even when she inherited, she was treated like a minor. She had no independent legal personality. According to certain ancient legal systems, a daughter received an inheritance but her children did not. On the other hand, a son not only received an inheritance himself, but his children also inherited the property left by their grandfather. Certain other legal systems allowed woman to inherit but not in the form of a definitely prescribed share, or in the language of the Qur'an 'an appointed share'. They simply allowed a progenitor to make a bequest in her favor, if he so desired.

Historians and investigators have given detailed accounts of the various laws of inheritance found in the ancient world, but we need not go into all their details. For our purpose, the above given summary is enough.

Wife: a Part of Inheritance

Sometimes the pre-Islamic Arabs counted a widow to be a part of her deceased husband's property and appropriated her accordingly. If the deceased had a son from another wife, he could throw a piece of cloth on the widow as a mark of acquiring her. Then he could dispose her at his will and pleasure. He had the option of either marrying her himself, or giving her in marriage to someone else and taking her dower. This custom, which was not peculiar to the Arabs, was abolished by the Qur'an.

In regard to inheritance, many aspects of the ancient Indian, Japanese, Roman, Greek, and Iranian laws also were objectionable and discriminating. For lack of space we cannot reproduce all that has been written by the experts in this respect.

Inheritance of Woman during the Sassanian Period

The late Saeed Nafisi in his book, 'Social History of Iran from the Sassanian times to the end of the Umayyad period", writes: "Another interesting feature of the Sassanian culture was that, when a boy reached the age of puberty, his father married him to one of his own numerous wives. During that period, woman had no legal personality. The father and the husband had vast powers over her property. It was the duty of the father or the head of the family to marry a girl when she reached the age of 15, but the age of marriage for the boys was 20. After being married, a girl was not entitled to receive any inheritance from her father or guardian. She had no right to choose her husband herself, but she could contract an unlawful marriage if her father failed to marry her when she reached the age of puberty. In that event also she did not inherit from her father.

The number of women a man could marry was unlimited. The Greek sources mention cases, where a man had several hundred women in his house. The Zoroastrian religious books show that the rules of marriage during the Sassanian period were complex and confused.

Woman's Inheritance in Islam

The Islamic law of inheritance is free from all the shortcomings and defects of the past. The only thing, which is objectionable in the eyes of the upholders of equality between man and woman, is that the share of woman is half that of man. According to the Islamic law, a son receives twice as much as a daughter, a brother twice as much as a sister and a husband twice as much as a wife. The case of father and mother is the only exception.

If a deceased has children and his parents are also alive, each of his parents will get one-sixth of the property left by him. It is because of woman's special position with regard to dower, maintenance, military service and some of the criminal laws, that her share has been fixed at half that of man.

For reasons mentioned earlier, Islam considers dower and maintenance essential and effective in the consolidation of a marriage. They ensure domestic harmony and coherence. The abolition of them is likely to shake the family structure and to push woman to prostitution. The dower and maintenance being compulsory, naturally woman's financial commitments have been reduced and man's burden has proportionately increased. To compensate man for his extra burden, his share in inheritance has been fixed at twice that of woman. It is dower and maintenance which have reduced woman's share.

Objection of the Westernized

Some Westerners, while criticizing woman's lesser share in inheritance and using it as a propaganda weapon against Islam, assert that, after all, there is no necessity of lessening woman's share in inheritance and compensating her for the loss by allowing her dower and maintenance. Is there any need of going into bylanes and adopting out-of-the-way methods? Why should not woman's share, from the beginning, be equal to that of man so that we may not he compelled to compensate her by allowing her dower and maintenance?

The gentlemen, who happen to be more royalists than the king, have mistaken the cause for the effect and the effect for the cause. They think that the dower and the maintenance are the effects of women's peculiar position with regard to inheritance, whereas the real position is just the reverse. Further, they seem to be under the impression that the financial aspect is the only consideration. Had that been the only consideration, obviously there would have been neither the need for the system of dower and maintenance nor that of disparity between the shares of man and woman. As we have mentioned earlier, Islam has taken into consideration many aspects, some of them natural and others psychological. It has considered woman's special needs, arising out of her procreative function. Man naturally has no such needs. Besides, on the one hand, woman's earning capacity is less than that of man and, on the other; her consumption of wealth is more. In addition, there are several other finer aspects of their respective mental make-up. For example, man always wants to spend for the sake of the woman of his choice. Other psychological and social aspects, which help in the consolidation of the domestic relations, have also been considered. Taking all these points into consideration, Islam has made dower and maintenance obligatory. Thus, it is not simply a financial question, so that it may be said that there is no need of reducing woman's share at one place and compensating her at another.

Objection of the Heretics of the Early Islamic Era

We have said that the dower and the maintenance are a cause and the peculiar position of woman with regard to inheritance is its effect. This point is not a new discovery. It came up even in the early days of Islam.

In the second century of the Hijri era there lived a man named Ibn Abi al-'Awja, who did not believe in religion. Taking advantage of the religious freedom of that period, he openly gave expression to his atheistic ideas. Sometimes he even came to the Masjid al-Haram (in Mecca) or Masjid al-Nabiyy (in Madinah) and engaged in arguments on the principles of Islam with the scholars of that time. One of his objections against Islam concerned inheritance. He used to say: "What is the fault of the poor woman that she gets one share whereas the man gets two". According to him, this was injustice to woman, the Imam Ja'far as-Sadiq (P), in reply to him, said that it was so, because woman was exempted from performing military service. Further, Islam had enjoined upon man to pay her dower and maintenance and, in certain criminal cases where the kinsmen of the offender had to contribute to the blood-money, she was exempted from such payment. These were the reasons why her share had been reduced. Thus Imam Sadiq expressly attributed woman's peculiar position, with regard to inheritance, to the existence of the law regarding dower and maintenance and her exemption from military service and the payment of blood- money.

The other Imams also answered likewise when a similar question was put to them.

Divorce

In no age other than ours has so much attention been paid to the danger of the disintegration of the family and its harmful consequences, and again, in no age other than ours has man been faced with the real danger of such disintegration.

Why Islam Has Not Prohibited Divorce

Here a few other questions arise. If divorce is so loathsome and so disliked by God, why has it not been totally prohibited by Islam? Islam could at least lay down certain conditions for its validity. In that case anybody who wanted to divorce his wife would have been judicially bound to justify his intended action before a court of law.

The second question is: What does the sentence, "Out of all permissible things, divorce is most detestable to God" mean? If it is permissible, it cannot be detestable and, if it is detestable, it cannot be permissible. These are two contradictory terms.

Lastly, has the judiciary, which represents the society, the right to intervene in the matter of divorce to the extent of withholding its implementation until either the husband takes back his decision or it becomes clear that no reconciliation is possible, and hence there is no alternative but to sever the conjugal bond?

Delegation of the Right of Divorce to Wife

We have so far dealt with the natural right of divorce which belongs exclusively to the husband. But he can confer the power of divorce on the wife. This delegation of power can either be general or limited to certain specified circumstances. To make it irrevocable it is included in the marriage contract as a binding clause, according to which the wife is empowered to dissolve the marriage in the specified circumstances already agreed upon.

It has been customary since the olden days that the women, who feel, in any way, apprehensive of the conduct of their husbands, insist on the inclusion of such a clause in the marriage contract and exercise the power delegated to them, if necessary.

Thus, according to the Islamic law, though woman does not have the natural right of divorce, she can have the contractual right of the dissolution of marriage.

Hence, it is not correct to say that the right of divorce is unilateral and Islam has given it only to man.

Judicial Divorce

Judicial divorce means the dissolution of marriage by a judge and not by the husband. In a large number of countries only a court is competent to effect divorce and to dissolve marriage. According to this system, every divorce is a judicial divorce. We have already made it clear that, in view of the spirit of marriage, the aim of the formation of a family and the position held by woman in the family, a divorce, which runs its normal course, cannot depend upon the decision of a judge.

Now we would like to see whether, from the Islamic point of view, a judge has no power to effect a divorce or there are any circumstances, howsoever exceptional, in which he can do so.

Divorce is the natural right of the husband, provided his relation with his wife run their normal course. Normally, if he wants to live with her, he should look after her, discharge all the rights belonging to her and treat her kindly. If he finds it impossible to live with her smoothly, he should pay up all her dues and part with her. Besides her dues, he is also required to pay her an additional sum as a token of goodwill and gratitude. The Qur’an says: "Provide for them, the rich according to his means, and the strained according to his means, a fair provision', [2: 236]

But there may be cases when the conjugal life does not run its normal course. There maybe a man who neither wants to live happily with his wife nor would he agree to divorce her.

Natural divorce may be compared to a natural childbirth, which automatically takes its normal course. But the divorce by a man, who is not willing to discharge his duty and does not agree to divorce, of his own accord, is comparable to an abnormal delivery which requires a caesarean operation by a surgeon.

Fixed-Time Marriage

One of the glorious laws of Islam, from the point of view of the Ja'fari (Shi'ite) law, is that there are two kinds of marriage, a permanent and a fixed-time marriage.

Some of the effects, which flow from these two kinds of marriage, are the same and some others are different. There are two distinctive features between them. One is that in a fixed -time marriage, a man and a woman enter into a contract to marry each other for a fixed period, on the expiry of which, if they wish, they can extend it, otherwise they separate.

The other distinguishing feature is that there is a greater freedom of choice in fixed-time marriage. The contracting parties may stipulate any conditions they like. For example, in a permanent marriage the husband is bound to maintain his wife and meet her daily expenses. Besides, he has to provide for her clothing, housing and other necessities of life like medicines and medical treatment etc. But in a fixed-time marriage everything depends on the terms of the contract. It is possible that the husband may not be able or may not be willing to bear the expenses of his wife, or the wife may not like to utilize her husband's money.

In the permanent marriage the wife has to accept her husband as the head of the family and obey him within the limits of family interest, but in a fixed-time marriage this also depends on the terms of the contract. In the case of a permanent marriage wife and husband inherit from each other, but this is not so in a fixed-time marriage.

However, in the fixed-time marriage after the formula has been pronounced the couple is recognized as lawful wife and husband and they can then have intimacy but before that they are strangers and it is prohibited for them to have any kind of sexual relation.

The main difference between a fixed-time and a permanent marriage is that a fixed-time marriage places fewer restrictions upon the spouses. Its terms depend upon their will and choice and the agreement concluded between them. Its very nature gives a sort of freedom to both the parties, for it puts the fixation of its duration into their own hands.

In a permanent marriage neither the husband nor the wife can use any contraceptive methods without the consent of the other, but in the fixed-time marriage such a consent is not necessary. This is, in fact, another kind of freedom given to both the husband and the wife.

The child born from fixed-time wedlock is in no way legally different from the child born as a result of a permanent marriage.

Dower (mahr): The marriage portion given by the husband to his wife. The dower must be specified and fixed at the time of marriage, but its actual payment may be deferred with the mutual consent of the parties concerned.

'Dower' is necessary, both in the case of a permanent and a fixed-time marriage, with the only difference that the non-specification of dower at the time of marriage makes the fixed-time marriage void (batil), but does not affect the validity of permanent marriage. If no dower is specified at the time of permanent marriage, then the wife is entitled to the dower, customarily fixed for the females.

In a permanent marriage, the husband is debarred from ever marrying the mother or daughter of the wife and the wife is permanently debarred from marrying the father or son of the husband. Similar is the case with regard to fixed time marriage as it is forbidden to propose to a permanently married woman, similarly, it is not allowed to give an offer of marriage to a woman who is married under fixed-time marriage rules. As adultery with the permanent wife of someone else permanently debars a person from marrying her, the same restriction is imposed in the case of adultery with the fixed-time wife of someone else.

After getting a divorce, just as the permanent wife has to pass through a period of probation (iddah), during which she cannot marry again, the fixed-time wife also, after the expiry of the marriage term or the termination of marriage earlier with mutual agreement, has to pass a period of probation. The only difference is that in the case of a permanent wife the iddah is three monthly periods, whereas in the case of a fixed-time wife it is two periods or 45 days. To have two sisters as wives at the same time is prohibited both in the case of a permanent as well a fixed-time marriage. This is what is meant by a fixed-time marriage, according to the Shi'ite law.

Obviously we support this law with the prescribed conditions and specifications. If some people misused it in the past or are still misusing it, that has nothing to do with the legal system as such. The abolition of this law, as suggested by some modernists, can serve no useful purpose, as, with its abolition, malpractices will not stop, but will only take a different shape. Moreover, the abolition of this law will give rise to many other evils. What is required is that, instead of finding fault with the law, people should be reformed and correctly educated.

Now let us see why it is necessary to have the institution of a fixed-time marriage side by side with that of a permanent marriage. If a fixed-time marriage is necessary, is it compatible with the present day conditions and modern-ideas of human values? We propose to discuss this question under two headings:

(a) Present day life and a fixed-time marriage

(b) Faults and evils of a fixed-time marriage

Caliph Bans Fixed-Time Marriage

Fixed-time marriage is an exclusive feature of the Ja'fari law. Other Muslim schools of theology do not allow it. I do not intend to enter into any Shi`i-Sunni controversy here. I wish only to refer briefly to the historical background of the question.
All the Muslims are unanimous that during the early period of Islam fixed-time marriage was permissible and the Prophet, during some of the journeys when the Muslims were away from their spouses and were feeling hardships, allowed them to contract fixed-time marriage. It is also agreed by all the Muslims that the second caliph, during the period of his caliphate, banned fixed-time marriage. According to the well-known reports he said: "Today I ban two things, which were allowed during the period of the Prophet. They are fixed-time marriage and performance of “Hajj” and “Urn rah” with separate “ihrams”,
Some Sunnis believe that the Prophet himself had banned fixed-time marriage during the last days of his life and the second caliph simply repeated this ban already placed by the Prophet. But the words of the caliph which have come down to us indicate something contrary to this. The correct explanation of this point is that which has been given by Allamah Kashif al-Ghita. The caliph banned temporary marriage, because he thought that the matter was within his constitutional power as Head of the State, who could use his special powers according to the needs of the time. In other words, the caliph's order was political and not legal. The caliph never concealed his deep concern over the dispersal of the companions of the Prophet in the newly acquired territories and their mixing with the newly converted Muslims. As long as he lived, he vehemently opposed their migration from Medina.
Especially, he did not like their blood to be mixed with that of the newly converted Muslims, whose Islamic training was not deep-rooted yet. Obviously, this was a temporary consideration. The Muslims of those days accepted the caliph's order without showing resentment, only because they knew that it was a political necessity and not a permanent law. Otherwise, it is inconceivable that the people would not have been resentful, when the caliph said that the Prophet had ordered one way and he was ordering the other way. But later, when, as the result of certain developments, the life of the early caliphs, especially the lives of the first two caliphs, came to be regarded as a model, their orders assumed the form of a permanent law. In this case our Sunni brethren are to be blamed more than the caliph who imposed temporary ban on fixed-time marriage for political considerations (just like the prohibition of tobacco in Iran at the beginning of this century). Others should not have given a permanent form to this ban.
It is evident that Allamah Kashif al-Ghita did not express any opinion as to whether the caliph's action was justified or not. He had simply described the nature of the plea on which action was taken in the first instance and the reason why it did not face any adverse reactions of the Muslims…
In many of his precious statements Imam Ali (P) the Commander of Faithful says: "If Umar had not taken the initiative to declare fixed-time marriage unlawful no one among the people, excepting a few sex maniacs, would have indulged in adultery.” That is, if fixed-time marriage had not been made unlawful, none would have developed freedom to commit adultery. Only those people, who are always inclined to commit unlawful acts, would have indulged in it.

Polygamy

Monogamy (Practice of being married to only one woman at a time) is the most natural form of matrimony. The spirit of exclusive relationship or individual and private ownership prevails in it, though this ownership is different from that of wealth or property. In this system the husband and wife each regard the feelings, sentiments and the sexual benefits of the other, as exclusively belonging to him or to her.
The opposites of monogamy are polygamy (Custom of having more than one wife at the same time) and sexual communism. The latter, in a sense, may also be regarded as a form of polygamy.

Defects of Polyandry

The main and the basic defect of the system of polyandry is that the paternity of the children practically remains uncertain. In this system, the relations between the child and the father are undetermined and that is the reason why it has not been successful. As sexual communism has not been able to take roots anywhere, this system also has not been accepted by any society worthy of the name. As we have said earlier, the family life, the building of a home for the future generation and the definite connection between the past and the future generations are some of the demands of the human instinct. The exceptional cases of the existence of plurality of husbands among certain sections do not prove that the desire of the formation of one's own family is not an instinct of man. Similarly, perpetual celibacy or complete abstinence from conjugal life, as practiced by a number of men and women, is also a sort of deviation. Polyandry is not only inconsistent with man's monopolistic nature and his paternal love, but it is opposed to the nature of woman also. Psychological investigations have proved that woman wants monogamy more than man.

Islam and Polygamy

In contrast to polyandry, Islam has not totally abolished polygamy, but has restricted it. On the one hand, it has fixed the maximum number of wives, which one can have, at four, and, on the other, it has stipulated certain conditions and has not allowed everyone to indulge in having several wives. We shall discuss the conditions stipulated by Islam later and will explain why Islam has not banned polygamy.
It is surprising that during the Middle Ages, when anti Islamic propaganda was at its highest, the opponents of Islam used to say that it was the Prophet of Islam who, for the first time, invented the custom of polygamy. They claimed that this custom was the basis of Islam and the rapid spread of Islam among the various people of the world was due to it. At the same time, they claimed that polygamy was the cause of the decline of the people of the East…

It is a fact that Islam has not invented polygamy. It has only restricted it. It has prescribed a maximum limit for it. It has laid down strict conditions for it. This custom already existed among most of the people who accepted Islam. They were only compelled to comply with the conditions laid down by Islam.

In his book, Iran during the Sassanian Period, Christenson writes:

Polygamy was considered to be the basis of the family. Practically, the number of wives, which a man could have, depended on his means. The poor people apparently could not afford to have more than one wife as a general rule. The head of the family had special rights as such. One of the wives was regarded as the favorite wife and enjoyed full rights. Some other wives were treated as servants only. Legal rights of these two categories widely differed. The slave girls were included among the servant wives. It is not known how many favorite wives a single man could have. But there has been a mention of two favorite wives in the course of several legal discourses. Each of them was called the lady of the house. Apparently they lived in separate houses. The husband was bound to maintain the favorite wife so long as she lived. Every son until he reached the age of puberty, and every daughter until she was married, had the same rights. But only the male children of the servant-wives were admitted to the paternal family.

In the Social History of Iran from the fall of the Sassanians to the fall of the Umayyads the late Sa'id Nafisi writes:

The number of women whom a man could marry was unlimited and at times it is observed in the Greek documents that one man had hundreds of women in his house.

Montesquieu, quoting a Roman historian, says that several Roman philosophers, who were being tortured by the Christians because they refused to embrace Christianity, fled from Rome and took refuge in the court of the Iranian King, Khusro Parviz. They were astonished to see that not only polygamy was legal there, but the Persian men had intimacy with the wives of others also.

It may be pointed out here that the Roman philosophers took refuge in the court of the Persian king, Anushirwan, and not in the court of Khusro Parviz. Montesquieu has mentioned the name of the latter owing to some misunderstanding.

During the pre-Islamic period, the Arabs could have an unlimited number of wives. It was Islam that prescribed a maximum limit. This naturally created a problem for those who had more than four wives. In exceptional circumstances, some had even ten. They had to part with six of them.

From the above it is evident that polygamy is not an invention of Islam. Islam only restricted it. Anyhow, it did not abolish it totally. In the following chapters we shall discuss the causes which gave rise to this custom and shall explain why Islam did not do away with it. We shall also discuss the reasons which in modern times have impelled both men and women to rise against this custom.

Drawbacks and Defects of Polygamy

A happy married life depends on sincerity, tolerance, sacrifice and unity. All these things are endangered in the case of polygamy. Apart from the unenviable position of the wives and the children in a plural marriage, the responsibilities of the husband himself are so heavy and crushing that it is no fun to shoulder them -Most of the men, who are happy and satisfied with polygamy, are those who practically evade their legal and moral responsibilities. They turn all their attention to one wife and ignore the other, whom they leave, in the words of the Qur’an, 'hanging', What is called polygamy by such people is in reality a sort of monogamy coupled with high-handedness, tyranny and criminal injustice. There is a proverb current among the common people which says: “One God, One Wife.”

That has been and is the belief of most of the people and, if we measure the problem by the standard of individual happiness, it is correct. The rule of monogamy, if not applicable to all men, is certainly applicable to most of them.

If someone thinks that polygamy, with all the legal and moral responsibilities it entails, is a bed of roses, he is sadly mistaken. From the angle of personal comfort and happiness, monogamy is definitely preferable.


Role of Islam in the Development of Polygamy

Islam neither invented polygamy (for it had been in existence for centuries before the inception of Islam), nor did it abolish it, for there existed no other solution of certain social problems. Islam only reformed this ancient custom.

Limitations

Before Islam, one could have an unlimited number of wives and could form a harem. Islam prescribed a maximum limit. It did not allow anyone to have more than four wives. Those who had more than four wives at the time of embracing Islam were required to release the extra wives.

We come across the names of several such people in the early history of Islam. A man named Ghaylan Ibn Aslamah had ten wives. Another man named Nawfal Ibn Mu`awiyyah had five. The Prophet ordered them to part with their extra wives.

The Shí`ah traditions report that during the days of Imam Sadiq (P) a Zoroastrian embraced Islam. He had seven wives. The Imam was asked as to what that man should do with his wives. The Imam said that he must part with three.

Justice and Equal Treatment

Another reform introduced by Islam was the condition of giving equal treatment to all the wives. Islam does not allow any discrimination between the wives or between their children. The Qur’an expressly says: "If you fear that you will not do justice (to them) then have one only." [4:3]

The Pre-Islamic world observed equality neither between the wives nor between their children. We have already quoted Christenson and others who say that during the Sassanian period polygamy was customary in Iran. One or more wives were called favorite wives and they enjoyed full rights and others known as servant-wives had lesser legal rights. Only the male children of the servant-wives were recognized to be the members of the paternal family.

Islam abolished all such customs and usages. It does not allow any wife or her children to be regarded as inferior to the other wife or children of her husband.

Will Durant in his book, History of Culture, Vol. I writes:

When a person accumulated wealth he feared that if it would be divided among all his children, each one of them would receive only as small portion of it. So he felt anxious to make a distinction between his real and favorite wife and other mistresses to enable the children of the real wife only to inherit from him.

This shows that in the ancient world discrimination between the wives and between their children was common. Anyhow, surprisingly enough Will Durant adds:

Until recently this continued to be the case in Asia. Gradually the real wife took the position of the sole wife. Other wives either disappeared or became clandestine mistresses.

Will Durant did not take notice of the fact, or he did not want to do so, that 14 centuries ago Islam abolished discrimination between the children. To have one real wife and several secret concubines is a European and not an Asian custom. It has only lately infiltrated into Asia.

Anyhow, the second reform which Islam introduced in the domain of polygamy was the abolition of discrimination between the wives and between their children. No form of favoritism with any particular wife is permissible. Almost all jurists are unanimous on this point. Only a few minor juridical schools have interpreted the rights of women in a way that smacks of discrimination. But there is no denying the fact that their view is in contradiction with the correct interpretation of the Qur'anic passage. The Prophet is reported by both the Shí`ah and the Sunnis to have said:

He who has two wives but does not treat them equally and shows leaning towards one of them, will be raised on the Day of Resurrection in such a state that one side of his body will be dragging along the ground. He will eventually go to Hell.

Justice is the greatest moral virtue. To prescribe the condition of justice and equal treatment means that the husband is required to be in possession of the highest moral qualities. As the feelings of man in respect of all his wives usually are not the same, observation of justice and abstinence from unequal treatment is one of his most onerous duties.

We all know that the Prophet, during the last ten years of his life, that is, during the period of his stay in Madinah, married several women. This was a period of Islamic wars and at that time the number of women, who had nobody to look after them, was quite large. Most of the wives of the Prophet were widowed and aged. Several of them had children by their former husbands.

The only maiden he married was Aishah, who often proudly said that she was the only woman whom no husband other than the Prophet, had ever touched.

The Prophet always gave strict equal treatment to all his wives and never discriminated between them. Urwah Ibn Zubayr was a nephew (sister's son) of Aishah. He inquired of his aunt as to how the Prophet treated his wives. Aishah said that he treated them with justice and complete equality.

He never gave preference to anyone of them over anyone else. Almost daily he called on every wife and inquired after her health etc. He passed the night with one wife, turn by turn. If by chance he wanted to pass a night with another wife, he formally came to the wife whose turn it was and took her permission. If the permission was given, he would go, otherwise he would not. Aishah said that she personally declined to give permission as and when he asked for it.

Even during his last illness which led to his death and when he was too weak to move, the Prophet scrupulously adhered to the principle of equality in his treatment with his wives. His bed was shifted from one room to another daily. At last, one day he called all his wives and asked them to permit him to stay in one room. With their permission he stayed in the room of Aishah.

At the time when he had two wives, Imam Ali (P) was so particular that he performed even ablution before prayer (wudu) in the house of the wife whose turn was there.

Islam attaches so much importance to the principle of justice and equality in treatment that it does not allow the husband and the second wife to enter into a stipulation at the time of their marriage, by which the second wife agrees to live on unequal terms with the first wife. This means that it is an obligatory duty of the husband to treat each wife on terms of strict equality, and that he cannot renounce this responsibility by entering into a prior agreement with anyone of his wives. All that the second wife can do is to forego some of her rights for practical purposes. But no such condition can be stipulated, nor is it possible that she should not have equal rights. Similarly, the first wife also can voluntarily forego some of her rights for practical purposes, but she cannot formally renounce them.

Once Imam Baqir (P) was asked whether by mutual consent it could be stipulated that the husband would visit one of his wives only once a week or once a month, or that the maintenance allowance of one wife would not be equal to that of another wife. The Imam said that such stipulations were not valid even with the consent of any wife. By virtue of marriage, every wife was entitled to full marital rights. All that she could do was to forego some or all of her rights after marriage, either to please her husband or for some other reason.

With all these strict moral conditions polygamy becomes a duty instead of being a means of pursuit of pleasure. Pursuit of pleasure and licentiousness are possible only in an atmosphere of complete freedom to pursue one's desires. But where there is a question of discipline, justice and duty, there can be no room for lewdness.

Those who indulge in licentiousness under the pretext of polygamy misuse an Islamic law and the society has every right to call them to account and punish them.

Apprehension of Not Doing Justice

To be fair, it must be admitted that the number of those, who observe in letter and spirit all the conditions laid down by Islam in respect of polygamy, is very small. According to the Islamic law, if a man apprehends that the use of water may be harmful to him he should not perform ablution for prayers, and if he apprehends that fasting may be harmful to him he should not keep fast. You come across many people who inquire of you whether they should or should not perform ablution, or whether they should or should not keep fast, for they apprehend that performing ablution or keeping fast might be harmful to them. Such inquiries are in order. Such people should not perform ablution and should not keep fast.

But the Qur’an specifically says that if you fear that you will not treat your wives equally, you must have only one wife. Still you do not come across a single person who may say that he apprehends that he might not be able to treat two wives equally, and may inquire whether in his circumstances he should or should not have a second wife. It is evident that some people knowing well that they will not be able to do justice, still have several wives. They do so under the cloak of Islamic law. These are the people who bring a bad name to Islam by their unworthy action.


Other Conditions

Besides the condition of justice and equality of treatment, there are also other conditions which a husband has to fulfill. We all know that a wife has a number of financial and other rights which the husband has to discharge. A husband has the right of having more than one wife, provided his financial condition allows him to do so. Financial soundness is a pre-requisite to monogamy also. Anyhow, we skip over further discussion of this question.

Physical and sexual potentialities are another pre-requisite.

It is reported in al-Kafi and al-Wasa'il that Imam Sadiq (P) has said that in case somebody collects several women, while he is not fit to satisfy them all, he will bear full responsibility if any of them takes to sin.

The historical accounts of the harems narrate many stories of young women, who, forced by the pressure of their sexual urges, had recourse to sin and occasionally became the cause of crimes and murders.

By now our readers should have become aware of the causes of polygamy and why Islam has not abolished this system. They should also have become aware of the conditions and limits prescribed by Islam in this respect. Islam has not disparaged women by allowing this system, but has rendered a great service to them. If polygamy is not allowed even where women of marriageable age outnumber men, women may become worthless toys in the hands of men. They may be treated worse than slave-girls, for man recognizes the child of a salve-girl as his own, but he makes no such commitment in respect of his mistresses and concubines.