A seminar on ‘Rethinking the Muslim Marriage Contract’ was held on April 14, 2012, at the National University of Singapore (NUS). This event was co-organised by AWARE, Leftwrite Centre LLP, and the National University of Singapore’s Department of Malay Studies and the Faculty of Arts and Social Sciences (Religion Cluster). The following is a summary of the discussion.

By Nadzirah Samsudin 

This seminar focused on the need to go beyond basic stipulations in the traditional marriage contract so as to better protect the rights of women entering a marriage. The seminar also explored possibilities for a better understanding of the marriage contract as a bilateral agreement between the man and the woman upon entering a marriage. It also highlighted the distinction between jurisprudential formulations (fiqh) – which can be subjected to change and revision – and the demands of justice stipulated as shari’a or God’s law.

Presentations were made by:

1. Kyai Haji Hussein Muhammad, founder-director of Fahmina Institute, Indonesia

2. Ziba Mir-Hosseini, Professorial Research Associate, Centre for Middle Eastern and Islamic Law, University of London

3. Halijah Mohamad, practising family lawyer and former Vice-President of AWARE

The seminar ended with a panel that brought together these 3 speakers, as well as Vivienne Wee, (Research and Advocacy Director, AWARE) and Suriani Suratman (Senior Lecturer at the Department of Malay Studies, NUS).

KH Hussein Muhammad spoke first on ‘The Need to Reform Muslim Thought on Gender’. A leading feminist scholar, he advocates for an interpretation of Islam that is shaped by the ‘ideals of universal human rights’, based on Al-Kulliyat al-Khams (the 5 Universal Principles):

1. Hifzh al-Din (Protection of the freedom of beliefs)

2. Hifizh al-Nafs (Protection of life)

3. Hifizh al-‘Aql (Protection of the intellect)

4. Hifzh al-Nasl (Protection of production rights)

5. Hifzh al-Mal (Protection of the property)

In his opinion, an interpretation based on these principles would be compatible with the Universal Declaration of Human Rights (UDHR) and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW).

He also raised the distinction between ‘what is fixed’ and ‘what can be changed’ in Islam — namely, the difference between syariah and fiqh.

The former is understood as revelation, and thus unchanging; while the latter is considered ‘the science of Islamic jurisprudence’, which is constantly reinterpreted according to the lived reality.

This distinction was also raised in Ziba Mir-Hosseini’s presentation on ‘Man as Protectors and Providers: The Unmaking of a Legal Fiction’. She stressed the need to make the following distinctions:

• Between Ibadat (ritual/spiritual acts that regulate relations between God and the believer) and mu’amalat  (social/contractual acts that regulate social relations and remain open to rational considerations and social influences)

• Between Islam (as religion) and Islamism (as political ideology).

Knowing such distinctions is crucial for understanding the interactions between theology and politics, providing a basis for discerning those interpretations of Syariah that are politically motivated to serve certain interests, including patriarchal interests.

Ziba Mir-Hosseini also discussed the issue of different interpretations of terms and verses in the Quran and how such interpretations may be motivated by different political and social interests.

One such example is verse 4:34 of Surah  An-Nisa, which begins with this statement: “Men are qawwamun over women.” This is the only place in the Quran where the term qawwamun (protectors/maintainers) is mentioned. Yet this one mention is used as the linchpin of male authority.

Mir-Hosseini pointed out that there are other verses about marriage that use terms such as ma’ruf (good way, decent) and rahmah wa muwadah (compassion and love). But these are ignored. Instead of even-handed attention to all Quranic injunctions on marriage, the one mention of qawwamun in verse 4:34 is disproportionately emphasized as the foundation for the legal construction of marriage.

This has led to the construction of qiwama (protection/maintenance) as a legal fiction in Muslim family laws, although this generic term does not appear in the Quran at all.

Furthermore, this legal fiction is used with reference to marital dispute and how to deal with it. But scant notice is taken of the mention that the Prophet never beat his wives or the subsequent verse 4:35, which urges that representatives from his and her families be brought together for the reconciliation of a married couple in dispute.

Halijah navigated us through Singapore’s legal system for Muslim marriage and divorce, shedding light on the husband’s unilateral right to divorce. She pointed out that the marriage contract actually provides an avenue to redress this unequal marital power. Both husband and wife are allowed to insert taklik (negotiated terms) in the marriage contract to set conditions for divorce.

The panel discussion began with Vivienne Wee’s presentation on ‘Muslim contexts in time and space’, which provided a historical overview of Muslim contexts and the rise of political Islam. Afterwards, the question-and-answer session revolved around issues of polygamy and the balance of power in such marriages; the need for capacity and knowledge building; and the need for more constructive dialogues, especially between the ‘progressives’ and ‘conservatives’.

The seminar was an eye-opener for many participants, providing valuable information for follow-ups, as well as a whole new discourse on gender and Islam. The relationship between feminism and Islam has to be explored further, not only in relation to marriage and family but also on inheritance.

It is important to have safe spaces to discuss such matters. Perhaps a point raised during the discussion may be relevant: To remain silent is to side with oppression; we are in this world because of amanah (free will), which has been entrusted to us as human beings.

The writer is AWARE’s Research & Advocacy Executive.