Al-Ahram Weekly   Al-Ahram Weekly
23 - 29 December 1999
Issue No. 461
Published in Cairo by AL-AHRAM established in 1875 Issues navigation Current Issue Previous Issue Back Issues

 
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Questions of personal status

By Mariz Tadros

The chances that a 1929 personal status law, which primarily regulates marriage and divorce, may be changed soon are unlikely. But another bill has been sent to parliament, with the intention of "facilitating the procedures of litigation in personal status" disputes. According to Prime Minister Atef Ebeid, President Hosni Mubarak is satisfied that the bill conforms to Islamic Shari'a (law). Al-Azhar's Sheikh Sayed Tantawi took the same stand. The bill makes it easier for a woman to win a divorce if she renounces her financial rights and to travel abroad, on a court order, without her husband's consent.

But the fact that the law was primarily intended to uphold the family's stability has disturbed some feminists. "Preserving the stability of the family, in effect, means subordinating the woman's interests to the interests of the husband and children. This is reactionary," said feminist activist Magda Adly.

The bill also triggered angry reactions from the other end of the spectrum. Some MPs have expressed outrage on the grounds that some of the bill's provisions, such as Article 23, undermine men's rights. This article is two-pronged. The first part stipulates that if a husband denies his wife the right to travel abroad, the latter can go to court, with the judge ruling on the dispute. The second part empowers the judge to prevent a man from travelling if he has not honoured his financial obligations toward his family. Some MPs insist that it is unconstitutional to restrict a citizen's freedom of movement. But feminist Azza Suleiman says that some restrictions should be imposed on the practice of going away and leaving a poor wife behind with no source of income. Both Adly and Suleiman believe that, instead of Article 23, women should have just been granted their constitutional right to travel, irrespective of their husbands' position.

There is a general consensus on some provisions that shorten and simplify divorce procedures for women and ensure that financial assistance is provided to divorced women. But there are heated disagreements on other provisions, such as Articles 26 and 31. Article 26 grants a woman the right to khol' or the right to win a divorce if she renounces her financial rights. For Mona Zul-Fuqar, a lawyer and feminist, this provision is intended to bridge the gap between Shari'a and the law. "This bill deals with the preservation of the family and one of its objectives is to make the law conform to Shari'a," she said. "The Islamic Shari'a gives the man the right to divorce and gives the woman the right to khol', thus ensuring fairness and justice."

Article 26 does not obligate a woman to renounce her right to financial assistance for the children in her care.

Abdel-Rahman El-Adawi, an Islamic scholar and a member of Al-Azhar's Islamic Academy, confirmed that the right to khol' is contained in Shari'a and is to be found in the hadith (sayings) of the Prophet Mohamed. But other scholars believe that what the Prophet said on the matter was simply a piece of advice, given to a man who was reluctant to divorce his wife.

Adly and Suleiman view the matter from a different perspective. "The principle works fine for rich women who can afford to buy their way out of marriage, but what are poor women to do? What are they going to live on after divorce?" said Adly. There are also concerns that women may be pressured or bullied into giving up their rights in return for divorce.

Under the bill, divorcing women without notifying them will no longer be possible. "There are cases in which husbands divorce their wives, do not inform them, and continue to live with them as if they were still married. It is only after the husbands die, that the wives find out that they had been divorced," said Mona Zul-Fuqar. But under the bill, a man who wishes to divorce his wife will have to do so in the presence of the ma'zoun (officiating Muslim cleric), who will document the divorce and notify the wife.

Mohamed El-Beltagui, a professor of Shari'a at the Faculty of Religious Studies, fumed: "This slaps restrictions on the man's unrestricted right to divorce, which is guaranteed in Islamic law and which no one has the right to take away." At the Ihsan Abdel-Quddous cultural "salon," where he spoke, voices of angry men, supporting his position, erupted from the floor.

When Zul-Fuqar attempted to explain that this article was intended to make men reconsider their decision in order to preserve the family, El-Beltagui shouted back that "men should not be denied the exercise of their right even for one day". One woman from the floor yelled, "You don't want a man to wait a while before divorcing his wife, when women have to wait for years before they win a divorce." The woman's voice was drowned by men's cheers supporting El-Beltagui's position that "any attempt to restrict men's freedom will backfire... If you are going to close in on the man, he is going to find a thousand ways of not conforming, by not marrying the woman, or marrying her the urfi way [without registering the marriage]."

Granting women who are married in the urfi manner the right to seek divorce, contained in Article 31, was also met by opposition from the majority of Islamic scholars. "It is a way of legitimising adultery by recognising urfi marriage as a veritable marriage," said El-Beltagui. El-Adawi agreed.

Judge Fathi Naguib, a counsellor to the minister of justice, defended the clause on the grounds that people are oblivious to the suffering of thousands of Egyptian women who are married to foreigners the urfi way, are later deserted and cannot obtain a divorce.

Temperature at the seminar shot up when Amir Salem, head of the Centre for Human Rights Legal Research, said: "So far, our discussion has been confined to fundamentalist grounds, as if there are no other terms of reference, and as if there are no other sources from which we can draw." The statement was met by an uproar from the floor; one man got up and headed for Salem, while El-Beltagui had to be restrained by the people seated next to him. "What about human development indicators? Why can't they be used as our terms of reference?" Salem said. "We are told that if women and men do not enjoy full equality, there are no prospects of real development... We should be discussing these issues in a wider framework than that of Islamic Shari'a. We should talk about citizens' rights. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) is another term of reference that should be invoked when we talk about the personal status law. I cannot just rely on Islamic scholars, whose opinions change with time, and are often discriminatory. Why not seek a more progressive term of reference?"

Fathi Naguib responded that Shari'a encompasses all human rights and is the best term of reference.

Many wondered, however: if some meagre changes favouring women in a draft procedural law could provoke such controversy, what will happen if the substantive Personal Status Law is brought up for reform? "The government is scared of the political response to a reform of the substantive Personal Status Law, which is the real source of oppression and is, therefore, offering some meagre rights in this procedural law," charged Adly. Suleiman and Adly insist that so long as the Personal Status Law remains unchanged, women cannot hope to enjoy full equality before the law.

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