Legal weapons

By Gihan Shahine

The woman had filed for divorce, but the case was dragging through the courts at the usual sluggish pace. Until it was final, she would have to stay in the country. She sued her husband, claiming that he was preventing her from traveling on business to obtain revenge. But she lost the case.

According to Interior Ministry decree 86/1974, neither a married woman nor her children can obtain a passport without her husband's written approval.

In 1996, another decree was passed making the husband's approval mandatory in the case of passport renewal, and enabling him to invalidate the approval officially if he wished to do so.

If he refused to grant permission, his wife would be unable to leave the country, even if she had been sent by the state or as the representative of an international organisation.

But a woman, according to lawyer Mamdouh Riyad, has the right to sue her husband if he is "abusing" the law. And in some cases, a woman can defy "her husband's despotism," Riyad maintains.

Violette Maqar, a tour guide, was prohibited by her husband from leaving the country. She had already filed for divorce. Her husband had been working in Saudi Arabia for three years and the two had an authorisation issued by the church allowing them to separate.

Maqar had to support herself financially. Her job required her to travel constantly. Her husband, however, filed an official request that she be prevented from leaving the country. Riyad, Maqar's lawyer at the time, was able to revoke the ban, having proved to the judge that the husband was abusing his legal right, since he was preventing his wife from making a living while failing to provide her with financial support.

"Before the 1996 decree, such cases were referred to the judge in charge of urgent matters, whose role is to issue an injunction within 24 hours," Riyad says. "Now, however, the matter is much more complicated."

According to Riyad, the 1996 ministry decree stipulates that cases like Maqar's follow normal judicial procedure, in which time and money are necessary to settle disputes. Women prevented from traveling are thus likely to miss conferences, or lose their jobs. Of course, if the woman is ill and needs to travel abroad for treatment, the matter is much more serious, notes Riyad.

Legal experts, sociologists and many married couples, however, tend to agree that men arbitrarily prohibit their wives from traveling only when the marriage is already floundering.

"In ordinary cases, a wife would never travel without her husband's prior approval," asserts Madiha Al-Safti, professor of sociology at the American University in Cairo (AUC). "Women are the ones who are keen on family life, and they would never take risks. Lately, however, family problems have increased due to economic and social factors. And so have those cases where men abuse their power over women. The decree thus only provides men with another weapon to use if there are marital problems."

In a press campaign launched by the weekly Akhbar Al-Yom newspaper against the 1996 decree, many cases of men abusing their power in this way were cited. One man even blackmailed his wife, demanding LE50,000 in return for his written permission.

The question is how to protect women against such despotism. Should the ministry decree be amended, or simply nullified? The matter is being debated, and the jury is still out.

Some argue that the ministry decree is incompatible with the Constitution and human rights charters. Others, however, argue that the decree is designed to protect the family, and is based on the Shari'a. Therefore, they believe, it cannot be revoked. But almost everybody believes an amendment is necessary to protect women.

"I believe the decree should be repealed," says Fawziya Abdel-Sattar, former head of the legislative committee of the People's Assembly. "It is extremely humiliating for women to be treated as criminals. The decree only gives men more legal weapons to use against women in case of marital problems."

Abdel-Sattar also argues that the decree is unconstitutional. According to article 41 of the Constitution, personal freedom to move from one place to another is a human right that may not be transgressed or curtailed unless the person has been found guilty of a crime or is wanted for interrogation.

"These exceptions are not valid in the case of a husband preventing his wife from traveling," Abdel-Sattar explains. "The decree puts women on equal footing with criminals."

Some feminists and legal experts also cite article four of the Constitution, which states that all citizens are equal before the law, and should not be subject to discrimination on the basis of race, ethnic origin, language, or religion.

Abdel-Sattar also refutes claims that the decree was designed to protect family life. "I believe that, the more the law and the State interfere with family life, the more time-consuming lawsuits flood the courts," she explains.

Mohamed El-Gamal, former president of Maglis Al-Dawla (the State Council, an administrative court), disagrees. "The law does adhere to the Constitution," he insists. Article 41, El-Gamal explains, refers to the relationship between employer and employee. It has nothing to do with the husband-wife relationship, he adds.

"The Constitution stipulates that Shari'a should be the basis of all laws. And since the decree is derived from Shari'a, which ordains a woman's obedience to her husband, then it is constitutional," El-Gamal asserts.

"Furthermore, the equality between the sexes stipulated in the Constitution has limits," he argues. "This equality depends on the roles and conditions of each sex. Men, for example, cannot object to the labour law, which grants women maternity leave, and claim that their equal status entitles them to paternity leave."

Many of the people who object to a total nullification of the decree, and are in support of an amendment, base their argument on Shari'a.

According to Hamed Abu Taleb, former dean of Assiut University's Dar Al-Ulum (school of linguistic and religious studies), Islam stipulates that husband and wife have equal rights and duties. According to Abu Taleb, the decree is based on one of the husband's conjugal rights. A woman, he explains, must not travel without her husband's approval, since she will not be able to fulfil her duties toward him during her absence.

Similarly, Mohamed Sayed Tantawi, the Grand Sheikh of Al-Azhar, recently declared that a husband should not travel without the prior knowledge of his wife. He added that the wife should also be informed of the duration of his absence, and notified of the means through which she can contact her husband. The wife has the right to disapprove if the trip is against the family's interest, he added.

"A true Muslim husband should not be despotic in exercising his rights," Abu Taleb insists. "If he does abuse them, the woman must refer the case to a judge, who is entitled to grant her the permission to leave against her husband's will."

Abu Taleb adds that both women and men have the right to include whatever conditions they want in their marriage contract, provided these conditions do not violate the Shari'a.

"If a woman includes the condition that she may travel whenever she needs to, the husband should comply," he suggests.

Zeinab Radwan, dean of Cairo University's Dar Al-Ulum, places more emphasis on the core of the marital relationship in Islam. "Marriage should be based on mutual compassion," she explains. "A marriage contract is an agreement between two individuals who are equal in rights and duties. If a man agrees to marry a working woman, and that is already included in the marriage contract, he should not change his mind and stop her from pursuing her career whenever he wishes to. Nor is he entitled to stop her from traveling when that is necessary for her career. The alternative is for the two to discuss the matter and reach a compromise."

Abdel-Sattar agrees. "I respect Shari'a, but I believe that such matters should be left up to the woman and her religious conscience," she says. "The husband arbitrarily prevents his wife from traveling only in cases when the couple are already having problems. But our laws do not conform to Shari'a in every respect, and women wait for years to obtain a court ruling for divorce. What happens if the woman urgently needs to travel during that period? And does the woman need her husband's official approval to get a job?"

While Abdel-Sattar and Radwan, significantly, insist the decree should be nullified, Abu Taleb and Riyad suggest amendment as a compromise.

"By nullifying the decree, we may be unfair to men in some cases," claims Abu Taleb. "If we leave it open for women to leave their husbands whenever they wish to, we are likely to have a society with loose morals. A husband may not be able to live without a wife for long periods. And we have to consider that not all women are equally mature and responsible." Riyad agrees, citing cases of women using their right to travel by taking the children and leaving home.

El-Gamal suggests that such cases be referred to the Public Prosecutor, who must pass judgment in three days at most. If either of the parties is dissatisfied with the judgment, they should be entitled to refer the case to the Court of Cassation, a process which should not take more than 15 days. All the legal procedures, El-Gamal further suggests, should not cost the parties anything.

With more such cases flooding the courts, the government has been reconsidering the decree. Fathi Naguib, assistant to the Minister of Justice, recently announced that a committee had been formed to issue a draft law protecting women whose husbands are abusing their rights. The draft will probably refer cases in which women are prohibited from traveling by their husbands to the judge responsible for urgent matters, as was the case before the 1996 decree. The new draft law will be discussed in the next session of the People's Assembly, according to Naguib.

Ironically, most of the women interviewed were in favour of a total abrogation of the decree, while most men advocated an amendment. The war of the sexes, it seems, continues.

Related:

The double bind