Al-Ahram Weekly 13 - 19 January 2000 Issue No. 464
Published in Cairo by AL-AHRAM established in 1875

Conditional surrenders Gender relations, including matters pertaining to personal status, have not always been what they are today. Amina Elbendary discovers a far more flexible past

Egypt Region International Economy Opinion Culture Heritage Special Books Profile Travel Sports People Time Out Chronicles Cartoons Letters

The new Personal Status Law that is about to be presented to parliament has caused quite a stir in media and popular discourse. The passionate debates that preceded it are in and of themselves quite a healthy sign. Such a law is bound to affect the existing power structure in gender relations and it is only natural that this will upset some. Interestingly, however, a lot of the criticism directed against the proposed amended law centres on the argument that it is "un-Islamic" and promotes practices that are alien to Egyptian society -- or to entrenched ideas of what is correct and true Islam. The holders of such views assume that things have always been the way they are today, and that any changes introduced now would be blasphemous innovations.

The work of such scholars as Afaf Lutfi El-Sayed Marsot, Nelly Hanna, Amira El-Azhary Sonbol, Judith Tucker and Hoda Lutfi, however, shows clearly that at different periods there was a discrepancy between the way things should have been like and the way they actually worked out; that is, between prescriptive discourse and actual history. Moreover, research into what could be termed the history of Shari'a has demonstrated that even the normative discourse of the jurists had itself changed over time, at times allowing women more leeway.

The new law re-introduces some old indigenous practices such as Khul'. Much of the criticism has focused on the issue of Khul' , a practice by which a woman is granted a divorce in return for relinquishing some or all of her financial rights, including the dowry and alimony. Historically, and according to the four schools of Islamic jurisprudence, Khul' could be granted even in the absence of any legal reasons for divorce, that is if a woman simply did not want to go on with the marriage. However, as Amira Sonbol argues, in the modern period, Khul' came to be used even when the woman was harmed or abused. That is, women whose husbands had beaten them, abused them or failed to support them often had to give up their financial rights in return for a divorce -- that is, if they were granted a divorce at all.

To gather from recent newspaper articles, the criticism of this issue has been two-fold. The first point made by critics of Khul' is quite simply that re-instituting it would make divorce easier for women -- an objectionable result, they feel. The idea seems to be that any woman would be able to "buy her way out of a marriage".

It is perhaps futile to try to argue with such opinions. The second criticism, however, is that Khul' is a procedure that favours only well-off women, who have other sources of income and can afford to forego some or all of their husband's financial duties toward them. While that is a valid incentive to try to find additional ways to make divorce easier even for women who can't afford Khul' , it should not negate the benefit of the procedure for many people. It is particularly useful in cases where the husbands can't afford to divorce their wives and simply desert them instead, and in others where they casually abuse their male prerogative of divorce. Khul', finally, is a procedure instituted by Islamic Shari'a and practiced in history.

Research into the history of gender relations can provide us with ideas of how mediaeval and early-modern Muslim societies dealt with such issues. Despite the change of times, the increase in women's literacy rate and their ability to ensure independent sources of income, many of the problems women and men face today are very similar.

Historians who have worked on the history of women in Egypt argue that in fact what we assume to be traditional and appropriate power relations are in large part very modern. They associate a new form of patriarchy with the rise of the nation-state. Ottoman court records offer a rich picture of how relations between men and women were played out on the everyday basis. Many marriages and divorces were recorded in court before a qadi (judge) and hence provide valuable information.

The theoretical works of Muslim jurists show that they were not very comfortable with the idea of phrasing a marriage contract in a way that would restrict the husband. However, once a condition requested by the wife was set down and accepted by the husband, they tended to agree with Ahmed Ibn Hanbal and his disciples that the husband had to conform with the obligations he consented to. In practice, many contracts included specific stipulations; the inclusion of preconditions, in fact, seems to have been a general rule rather than an exception. This shows that jurists eventually had to give in to local customs and changing needs of society. It was often the women who asked for specific conditions to safeguard certain privileges. The idea of attaching conditions to a marriage contract was in itself socially and -- albeit reluctantly -- legally acceptable. Marriage was not seen as a sacrament, but rather a "contract" between two people.

The sorts of clauses that couples included in their contracts are very interesting. They demonstrate a great degree of diversity in how people organised their family lives within the parametres set down by the Shari'a. The issue of lodging was central. Many contracts specified that the couple would live with the wife's family or close to them, rather than with the husband's family. Polygamy was also one of the issues that pre-occupied women in Ottoman times. It is well-known that Islamic law allows a man to take up to four wives. Court records, however, show that limitations were often placed on this right. Working on Egyptian court records from the 17th century, Nelly Hanna found that 23 per cent of 220 cases contained stipulations pertaining to co-wives. A very common stipulation was that, should the husband decide to take another wife, his first wife had the right to divorce -- with all her financial rights assured. Expectedly, a woman's place in society, her socio-economic standing, affected the balance of power in her relationship with her husband. Women from wealthy families could afford to insist on more restrictions in their contracts. A certain Gawyariya, daughter of the sheikh of the coppersmiths' market, imposed 12 restrictions on her husband to ensure her position of power within the household. However, research shows that the difference between marriage contracts of ordinary women and wealthier ones was mainly one of degree: the richer the woman, the more conditions she could impose. Restrictive stipulations were a prerogative of many women in society, women from families of textile workers, stone cutters, barbers, cooks, water carriers, copper workers, as well as goldsmiths, merchants, traders, sheikhs and emirs.

A lot of the recent debate on the law has also centred on the proposed amendment that would not require a wife to obtain her husband's approval for travel. The debate is, in other words, on women's right to freedom of movement. Ottoman court records indicate that this was also an issue back then. Some Muslim jurists hold that a wife has to seek her husband's approval for any movement outside the marital home. Historical records indicate that women found ways to circumvent such restrictions. Some women included clauses in their marriage contracts that would guarantee them a degree of freedom of movement, such as, for example, a wife's stipulating that she would have the right to go on pilgrimage or to the public baths, or to visit her parents whenever she chose. One woman involved in trade added a clause that she would go on with her profession as before the marriage. Wealthy women, like Umm El-Hanna, the daughter of Ismail Abu Taqiya, head of the Cairo merchants, actually restricted her husband's movements. He needed her permission -- in addition to that of her mother and brother -- to spend more than two consecutive nights outside the house without a good reason or a legally accepted excuse.

Conditional clauses in the marriage document meant that if and when the husband failed to fulfil these obligations, a qadi granted the woman a divorce without encroaching on any of her financial rights. They were used by women from all walks of life and not just by elite women.

The proposed amendments to the Personal Status Law have undergone a lot of changes over the past few years. Unfortunately, however, the amended version finally presented to parliament does not refer to the practice of adding conditional clauses to the marriage contract. The contract remains a bureaucratic fill-in-the-blanks form to be filled by the parties. It is therefore significantly different from the make-your-own-marriage-contract of Ottoman times, which was far more flexible. These were not forms to be filled out. They were entries in court registers. There was a general common formula repeated in most contracts and then followed by conditional clauses if any were desired. A lot of the problems women face today could be avoided by such stipulations. However, even though the amended law does not solve all the legal problems women face, it signifies the beginning of change in the legal discourse to reflect changing socio-economic conditions.

	weeklyweb@ahram.org.eg