29 Apr. - 5 May 1999
Issue No. 427
|Published in Cairo by AL-AHRAM established in 1875|
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Mothers in waitingby Nadia Abou El-Magd
The Court of Cassation recently ruled that a husband's infertility does not constitute sufficient grounds for his wife to file for divorce. The court justified its ruling with the statement that the aim of marriage is not procreation, but the exercise of mu'adda (compassion) and rahma (leniency or mercy).
The verdict shocked feminists, but many judges, intellectuals, human rights activists and religious personalities were equally outraged. All those angered by the verdict described it as a symptom of the wider phenomenon of inequality between men and women, especially with respect to personal status issues. Many described this inequality, in turn, as a reflection of the lack of respect for girls and women in Egyptian society.
Under the Egyptian Personal Status Law, a Muslim man can divorce his wife without ever setting foot in court -- he need only repudiate her three times. Women whose husbands refuse to release them from their wedding vows, on the other hand, must fight it out in court. Divorce, furthermore, can be obtained through a judge's ruling under certain conditions (such as proven domestic violence). A husband's infertility, however, is not one of them. A woman can ask for divorce, according to Egyptian law, on the following grounds: the husband's refusal to fulfil his conjugal duties; prolonged absence with no news of his whereabouts; refusal to provide his wife with the means of survival, or to support the household financially; the husband's contracting of an infectious disease; mental illness; or impotence. If the wife can prove that her husband abuses her verbally or physically, there is also a chance that a judge will grant her a divorce. Finally, if the wife can prove that her husband's taking a second wife has harmed her, she can obtain a divorce -- provided that she takes action within a year of learning of his remarriage.
"The problem is not with the Cassation Court's verdict, but with the Personal Status Law that enabled the judges to issue the verdict. It is in line with the patriarchal mentality that dominates society and the legal system," lawyer Yasser Abdel-Gawad, director of the Centre for Egyptian Women's Legal Aid, told Al-Ahram Weekly.
"We have to discuss and change the culture of this society, because the judges who issued the verdict are products of this culture," added lawyer Mona Zulfiqar. "When a man divorces his wife or takes another wife because the first cannot have children, no one would contest his right to become a father. Why don't we give women the right to become mothers? The judge has no right to deprive a woman from becoming a mother," demanded Zulfiqar, a prominent women's rights activist.
photo: Adel Ahmed
For Islamic writer Safynaz Kazem, the ruling is "completely illegitimate, not only because it is biased against women but because it contradicts Shari'a." Kazem believes that the mere fact that a wife wants a divorce should be sufficient reason. She cites an example used by many jurists to justify khul' (a mechanism enabling the woman to divorce if she returns to her husband whatever he gave her by way of wedding gifts or bride-price): "A woman sought the help of the Prophet Mohamed, and told him she wanted a divorce because she did not love her husband. The prophet asked her what he had given her as a wedding present. She told him he had given her an orchard, so the prophet told her to give it back, and granted her a divorce." Kazem, speaking "not as a feminist but as a Muslim", described current developments as "thuggery that should not have been reinforced by any law".
Sheikh Yehia Ismail, a scholar at Al-Azhar, disagrees. "I thank God for this verdict, which is in line with Islamic law: a man's inability to have children is not a reason for divorce: having or not having children is God's will," said Ismail, citing a verse from the Qur'an to support his argument. What if a woman wants children anyway? Ismail's advice is that "she should accept God's will, and not punish her husband for something he can't do anything about." For Ismail, a woman who has not had children due to her husband's infertility cannot claim to have been harmed. He believes, on the other hand, that impotence can be a reason for divorce.
Writer, medical doctor and prominent feminist Nawal El-Saadawi cannot see the logic in this way of thinking. "If Islam respects women's right to sexual satisfaction, how can it fail to respect her desire and right to have a child?" she demanded.
Saad Zalam, dean of the Faculty of Arabic Language at Al-Azhar University, also objects to Ismail's reasoning. "Islam defines the duties and rights of husbands and wives in marriage. Marriage is not for sexual pleasure only, but to make a family," he asserted. "Depriving a woman of children can lead some of them to commit adultery, or even kill their husbands to get rid of them -- a real threat to society."
El-Saadawi would tend to agree. "Motherhood is one of the strongest instincts in women. As a psychiatrist for over 40 years, 99 per cent of the cases I have seen of women committing adultery or bigamy have been due to their desire for children," she noted. As a feminist, however, El-Saadawi opposes the social pressure that forces women to marry and become mothers, most often at the expense of their education, work and economic independence. The irony, therefore, according to her, lies in the fact that the court's ruling places women in a double bind, by depriving them of the principal role assigned to them by God and emphasised by society.
"If the purpose of marriage is not to have children but to have compassion and mercy, what alternative do women who want children have? And how can a woman who wants to have a child have compassion toward an infertile husband who refuses to divorce her? The verdict is against logic, justice, religious texts, and accepted social norms," she said. El-Saadawi attributes the verdict to a global ascendance of fundamentalist religious trends.
According to a judicial source who requested anonymity, the judge who issued this verdict is the same judge who ruled that Cairo University professor Nasr Hamed Abu Zeid, accused of apostasy, be divorced from his wife.
Counsellor Ibrahim Saleh, a judge who served in the Court of Cassation for 12 years, feels that such rulings should be discussed "to see whether they conform not only with existing laws but also with social needs, beliefs and norms". He strongly feels that the court should not include the ruling in its annual report, in order to avoid establishing a precedent.