Is Islam deemed less tolerant of women's rights than other faiths and cultures?

Dr Ashraf Booley and Mohammad Hoosain Sungay

Women's rights in Sharee'ah law

On the 28th of June 2022, Acting Justice Tlaleltsi handed down a ground-breaking unanimous judgement in the Constitutional Court of South Africa. This judgement declared certain sections of the Marriage Act 25 of 1961 (hereafter the Marriage Act) and Divorce Act 70 of 1979 (hereafter the Divorce Act) unconstitutional on the basis that they failed to recognise marriages solemnised in accordance with Sharee’ah law Principles. The Muslim community in South Africa at first perceived this as a complete victory given the years of adjudication that had preceded it. Although this judgment may appear to be a step in the right direction, it has certain repercussions that may be deemed to be inconsistent with what is required by Islamic law. Inferences may be drawn that the judgement reinforces widespread stereotypes about the Muslim community, particularly the idea that Islam denies rights to Muslim women.

There is a common misconception that women's rights and Islamic Sharee'ah law are intrinsically at odds with one another (Uddin, 2017, p.27). This assumption is held by almost everyone, including seasoned anti-Muslim activists (Al-Manteeqi, 2016). These groups have a number of common ideas, such as the notions that women inherit less than men, that the dower symbolizes the purchase of a woman in marriage, that no financial protections are offered for women, and that polygyny is an unregulated practice among many others. These myths will be clarified and dispelled in the forthcoming sections. Additionally, we will show how Sharee'ah legislation gives Muslim women more rights in all facets of life. It will also illustrate historical changes in the Muslim world, demonstrating how Islam has advanced far beyond "modern civilization" in its fight for women's rights when compared to the historical and cultural groupings.

Quranic injunctions

Contrary to popular assumption, Islam has advanced women's status and granted them revolutionary rights over 1400 years ago. These rights were codified in the revelation of the Holy Qur’an. The fourth chapter of the Holy Qur'an's 114 chapters is titled "women". Logically as one would assume, this chapter deals predominantly with women’s rights in all fields of life. In the opening segments of this chapter, it is made clear that men have the full financial responsibility to take care of woman. It is further contended that Islamic law is unanimous in the principle that a husband has no authority over the property and assets of his wife, while she has rights over his. Only in 1922, did the Law of Property Act allow only then for both male and female to inherit property. The Holy Quran states in chapter 4 verse 7: “Just as there is a share for men in what their parents and kinsfolk leave behind, so there is a share for women in what their parents and kinsfolk leave behind – be it little or much – a share ordained /obligatory (by Allah)” (Ali, 1946). This verse embodies various legal injunctions. The most important one is that both men and women can inherit. Although it is true that as a general rule, the female is to inherit half the share of her male counterpart, the missing half share from the females inheritance is provided for by the aforementioned financial responsibility laying on the male figure responsible for her and the family (Ali, 1946). Prior to her marriage, her father or brother fills this role of the wali. After her marriage, her husband takes this role of guardianship over to care for her maintenance (nafaqa). Food, shelter, and clothing for the wife and kids during the marriage are all included in this upkeep. These maintenance responsibilities are further extended to the waiting period (iddat) following the termination of the marriage, normally three menstrual cycles must pass (Booley, 2014). This obligation continues even after death, as a woman's funeral costs are to be covered by her wali, whereas the reverse is not true (Abduroaf, 2018).

Despite all the provisions of Sharee'ah legislation that support women's rights, why are Muslim women in South Africa in such a perilous position?

One of the primary factors contributing to the sad situation of Muslim women is the non-recognition of Muslim marriages. In the Women's Legal Centre Trust case, a matter was brought forward on behalf of 2 parties, both of which were aggrieved females to Muslim marriages dissolved. With the non-recognition being afforded, it was noted in the judgement that parties to Muslim marriages are left with little to no recourse in comparison to civil marriages. To make matters worse, despite being a citizen of South Africa, Muslim women may lack legitimate access to our courts as a result of this nonrecognition. It was further asserted that this non-recognition amounted to nothing less than compromising a citizen's right to dignity and equality, among other constitutional rights. Therefore due to the lack of enforcement mechanisms to enforce their religiously granted rights, Muslim women experience extreme economic and social problems when going through divorce. There are many real-world instances that may be utilized to demonstrate this conclusion. The situation where women are given sole financial and domestic obligations is one example of this that can be alluded to. Women have an unfortunate continued inability to control their own fertility. This moreover than not results in childbirth which then limits their ability to engage in productive activities. Women’s responsibility for unpaid domestic work makes them time poor as well as more economically dependent on men (Peace & Egharevba, 2018). Islamic law as explained provides further remedies for this as well in the form of maintenance payments. However, the sad reality is once again, this is yet another unenforceable right as Muslim woman can’t raise their religious right to maintenance in a court of law.

The question therefore becomes, which is at fault—our South African legal system or the Sharee'ah law system? The obvious answer to this taking the above mentioned into account is of course the former system of law. In a post-apartheid South Africa there are still no legislative provisions recognising Muslim personal law – even though the Constitution makes provision for such legislation to be enacted. Consequently, Muslims have been practicing their Islamic family laws of marriage, divorce, and inheritance within the private sphere, facilitated, and regulated by community-based Muslim judicial bodies, and their affiliated clergy (Sheikhs and Imams). These clergies have limited to no enforcement mechanisms in comparison to our judicial system (Essop, 2022). As an illustration, if a court makes a maintenance order against an ex-husband from a marriage, he will be aware that if he does not comply with the order, he will be arrested and further prosecuted in court. Consequently, Muslim Judicial bodies and their affiliated clergies can merely recommend that certain rectification measures should be followed. If they do not comply with the advice/orders given, there remains no enforcement mechanism that is available to enforce that woman attain their Islamic rights.

Ways forward for Muslim women in South Africa

This phenomenon is sadly the reality in our current day South Africa. One wouldn't think twice about abandoning their wife without providing for her Islamically required right to upkeep because there would be no accountability on them. Simultaneously, that same individual would be scared to drive faster than the posted speed limit out of concern that they would get fined. There is evidence showing that women in Muslim marriages are often unable to persuade their partners to conclude civil marriages to allow them this recourse in a court of law. It is crucial to remember that there are numerous examples of women in civil marriages who, despite having these enforcement measures, also find themselves in incredibly challenging circumstances. This issue is beyond the scope of this paper and was just mentioned for the sake of completeness. We are now in a position where the Muslim community in South Africa is forced to deal with this awful situation. How can the state correct the issue is the next logical question at this point. Will simple recognition be enough or will a special piece of legislation need to be drafted for Muslim Woman’s rights to be fully realised. Above and beyond this, is it even possible to draft a piece of legislation that is fully Sharee’ah and Constitutionally complaint? (Domingo, 2011).

Is Islam deemed less tolerant of women's rights than other faiths and cultures?

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