Article 112
The primary role of women is that she is a mother and responsible over
the household and she is an honour that must be protected.
This article is derived from numerous evidences: firstly, the evidences which
encourage marriage and that the woman has more rights in the nursing of the
child. Secondly, the evidences which prohibit the woman from leaving her husband’s house
without his permission and obligate her to serve her husband. Thirdly, the evidences regarding
the awrah (private parts of body that must be covered in public and in
front of non-family members), the private sphere of life for her, the
prohibition of khalwah (for an unrelated man and woman to be alone
together in private space), the prohibition of the woman travelling without a
close male relative and the prohibition of tabarruj (beautification
which attracts attention).
The first evidence has been mentioned in a narration from Anas that the
Prophet
used to instruct people to be
chaste, while vigorously prohibiting celibacy; he
said “Marry from those who
are tender and fertile, for indeed I will compete with the Prophets in your
great numbers on the day of judgement” (reported by Ahmad with a Hasan chain). Ma’qal
b. Yasar narrated “A man came to the Prophet and said “I have found a
woman who is beautiful and of noble descent but she cannot bear children. Shall
I marry her?” He said “No”. Then he came to him again for the second time and
he prevented him. Then he came to him a third time, so the Prophet said “Marry
those who are tender and fertile (women), for indeed I will compete against the
other nations with your great numbers”” (reported by Abu Dawud and Ibn Hibban and al-Hakim, who
authenticated it). This indicates that the wisdom behind marriage
and the intended result is childbirth, and he
prohibited marrying a woman who
was known by her fiancé to be barren, though this is a non-decisive prohibition
due to the absence of an indication of decisiveness, as well as the evidences
reported that permit withdrawal, in other words for the sake of preventing
pregnancy. From these evidences is what Muslim reported from Jabir who said “We
used to withdraw at the time of the Messenger of Allah
, and so that reached the Messenger of Allah
and he did not prohibit it”. So it is permitted to marry a woman who is barren, though it is
preferable to marry those who can bear many as it is recommended in accordance
with the previous narrations. In other words, the woman is primarily to be a
mother, and then a wife and to have spousal relations in accordance with what
the Shari’ah made permitted and recommended. Additionally, it is
narrated from ‘Abd Allah b. ‘Amru b. al-‘Aas “A woman said “O Messenger
of Allah, this is my son whom my stomach carried, my breast is a water-skin for
him, and my lap is a guard for him. His father has divorced me and wants to
take him away from me”. So he
said “You have more right to him
as long as you do not remarry”” (reported by Abu Dawud and
al-Hakim that authenticated it and al-Dhahabi confirmed it). So the narration
enumerated the various situations which occur between a mother and child, which
indicates the importance of her motherhood, and he
gave her custody.
These two narrations indicate that the primary role of the woman is to be a
mother, in addition to the rules related to pregnancy, birth and suckling the
child.
As for the second evidence, it is narrated from Anas that a man travelled
having prohibited his wife from leaving their home, and subsequently her father
became ill and so she sought permission from the Messenger of Allah
to visit him, and the Messenger
said to her “Fear Allah, do
not disobey your husband” as mentioned by Ibn Qudamah in al-Mughni. It is narrated from Abu Hurayrah that the
Messenger of Allah
said “It is not allowed for
a woman to fast while her husband is present, unless she has his permission” (agreed upon narration). And it is
narrated from Ibn ‘Abbas that the Prophet
said “The husband has a
right over his wife that she does not undertake any voluntary fasting except
with his permission” (reported
by al-Tabarani). The Shari’ah has given women the right to visit their
father if they became ill, and the right to do voluntary fasting, but it made
it subservient to the husband’s right over her, which indicates that the
primary role is that she is responsible over the home.
Additionally it is reported that the Prophet
“obliged
his daughter Fatima with the housework, and ‘Ali with the outdoor work” reported by Ibn Abi Shaybah from Damrah b. Habib, and although Abu
Bakr Bin Maryam al-Ghassani[YUN1] is in the chain
of the narration, the meaning of it is in the narration which Ahmad
reported in al-Musnad with a Hasan chain from ‘Ali (ra) which
mentioned: “….and so ‘Ali said O Messenger of Allah, I swear by Allah I
irrigated the land until my chest hurt, and Fatima said I have grinded flour
until my hands got blisters, and Allah has brought you many captives so help us
(in this work)…So he said
should I
inform you of something which is better than what you asked me? They
said yes. He said: Some words which Jibril taught to me: After each prayer Say
Glory to Allah (sabih) ten times, Praise be to Allah (hamd) ten times, and
Allah is Great (kabbir) ten times, and when you go to bed then Sabih, Hamd
thirty three times each and Kabbir thirty four times. I swear by Allah, I did
not leave doing that from the time that the Messenger of Allah taught me. Then
Ibn al-Kawa asked him: Not even on the night of Siffin (the battle with
Mu’awiyah)? So he replied: May Allah fight you O people of Iraq, Yes, not even
the night of Siffin”.
In this report the
Messenger
did not blame Ali (ra) for working on the irrigation
outdoors, nor Fatimah (ra) for grinding flour indoors, but
rather gave them some words which would make the difficulty of life easier for
them, and be of more benefit and lasting to them in the hereafter.
Similarly the narration indicates the obligation of the work of the woman
in her house, and the man’s work outside of it, since the request for a servant
is an evidence of the difficulty of the work upon her inside and him outside,
and if these issues were not obligatory upon them there would be no indication
from the difficulty of the work, in which case there would be no difficulty and
no hardship, if it was not obligatory.
This is from the angle of what is understood from the narration of Ahmad
as a support for the narration of Ibn Abi Shaybah.
Also Abu Hanifah used the narration, as did a number of jurists, such as
Abu Bakr Bin Abi Shaybah who reported the narration, as well as Abu Ishaq
al-Jurjani who also reported the narration through numerous chains as mentioned
by the author of al-Mughni, though he (ibn Qudama) did not use it
himself.
In the same way Ibn Habib al-Maliki in al-Wadiha took the
narration and used it. Ibn Hajar mentioned in Fath al-Bari: “And Ibn
Habib reported from Asbagh and Ibn al-Majishun from Malik that the housework is
obliged upon the woman, even she was noble, if her husband was not financially
able to pay (for a servant). He said: and for that reason the Prophet
obliged Fatima with the indoor work and Ali
the outdoor”.
Based upon that we
take the mentioned narration of Ibn Abi Shaybah “he
obliged his daughter Fatima with
the housework, and Ali with the outdoor work”.
And he
used to order his wives to
help him. Muslim reported from Aaisha (ra) the mother of the believers that the
Messenger of Allah
said “O Aaisha, bring
the knife and sharpen it with a stone”. And Ahmad reported with an
authentic chain from Ya’ish b. Takhfa Bin Qays al-Ghifari who said my father
was from the al-suffa (poor people at the time of the Prophet
)…until he mentioned “So we went with him to the house of Aaisha, so
he said: O Aaisha, feed us, then he said, O Aaisha, bring us drinks”. If serving him conflicted with any action
that the Shari’ah made mubah (permitted) for her, such as trade,
or anything recommended, such as recommended prayers, then serving him is
preferred. So it would be upon her to leave behind the optional and recommended
actions and instead serve him. These two evidences are proof that the primary
role for the woman is to be responsible for the household.
As for the third evidence, the Prophet
said “If a girl reached
puberty (indicated by starting menstrual cycle), it is not correct that any
part of her should be seen other than her face and two hands up to the wrists” reported
by Abu Dawud as a Mursal narration from Qatadah, and Qatadah had met the
companion Anas and so his Mursal narrations are acted upon. This is the
restriction for the woman’s clothing and her awrah, and it a proof that
she is an honour that must be protected.
Additionally, Allah (swt) said “O you who believe, do not enter
houses other than your own, until you were familiar with (sought permission)
and greeted those in them” (TMQ
24:27), and so Allah (swt) prohibited to enter houses without the
permission of their occupants, and considered lack of permission to be
estrangeent, and the granting of permission to be made familiar, and said “until
you were familiar with (sought permission)” which is an allusion that
indicates requesting permission. The permission here is intended to prevent
entering into a house when the woman is not covered, which is why permission is
necessary even with the mother. In a narration: “That Malik told me from
Safwan b. Sulaym from ‘Ata’ b. Yasar a man asked the Prophet
‘Should I seek permission to see
my mother?’. He
said ‘Yes’. So the man said “she
is in the house with me”. He
said ‘Seek her permission. So the
man said ‘She has no one else to serve her except for me, should I still seek
permission every time to see her?’. He
said ‘Seek her permission. Would
you like to see her naked?’ The man replied ‘No’. So the Prophet
said ‘So seek permission’” reported by Malik in Al-Muwatta and Abu Dawud in al-Marasil from
‘Ata’ b. Yasar, and Ibn ‘Abd al-Barr said in al-Tamhid that it is an
authentic Mursal narration, and in al-Istidhkar he said it is from the authentic Mursal narrations. And Allah
(swt) said “and not to show off their adornment except that which is
apparent, and to draw their veils all over and not to reveal their adornments
except to their husbands, or fathers, or their husband’s fathers, or their
sons, or their husband’s sons, or their brothers or their brother’s sons, or
their sister’s sons, or their women, or the slaves whom their right hand
possesses, or old male servants who lack vigour, or small children who have no
sense of feminine sex.” (TMQ
24:31). Therefore, Allah (swt) has defined what can be shown by the
woman in her private life, and that she can only let her family (maharim –
those men who cannot marry her) and those who do not have sexual desires
(children and elderly) see more than her face and hands. This restriction
clearly indicates that she is an honour which must be protected, and so she is
surrounded with these rules. In the same manner that her awrah is
defined, the people who are permitted to see more from her awrah are
also precisely defined, which indicates that the woman is protected.
Additionally, it has been narrated from Ibn ‘Abbas that he heard the
Prophet
addressing the people saying “A
man should not be alone with a woman unless she has a mahram (male family
member) with her” (agreed
upon). It is also narrated that the
Prophet
said “It is not permitted
for a woman who believes in Allah and the Day of Judgement to travel a day and
nights journey without a mahram” (reported
by Muslim). And in the narration of Ibn ‘Abbas that the Prophet
said “A woman should not
travel unless she is with her mahram” A man stood up and said ‘O Messenger of
Allah, my wife has gone to pilgrimage and I was assigned to such and such
expedition’ and so the Messenger
said “Then leave and go on
pilgrimage with your wife” (reported by Muslim from Ibn ‘Abbas). So the Messenger
withdrew him from the army which
was going out to battle, in order to protect his wife.
Also, Allah (swt) said “And as for women past child-bearing who do
not expect wedlock, it is no sin on them if they discard their (outer) clothing
in such a way as not to show their adornment” (TMQ 24:60). The meaning is not that they should not be
beautified, since beautification is permitted for the woman without any
restriction, rather they should not display their beautification in such a way
that would turn men’s attention towards them, and so the prohibition is for the
open display of the beautification and not the beautification itself.
These evidences all indicate conclusively that the woman is an honour
that must be protected, and accordingly the proof of this article has been made
clear.
Article 113
In origin men and women are segregated, and do not come together except
for a need by Shar’ agrees to it and agrees to their assembly for
it , such as trade and the pilgrimage.
This article is derived from numerous evidences. Firstly: the Shari’ah
divided the Muslim’s life between the general and private spheres, and in the
woman’s private life she can display what is above her awrah to her maharim
(close family relatives), whereas in her public sphere she cannot display
anything from her body except her face and hands. Secondly, the Shari’ah
made the rows of the woman in prayer behind that of the men. Thirdly, the Shari’ah
ordered men to lower their gaze from the women, and vice versa. Fourthly, the
woman has been ordered to cover herself in modest clothing which covers every
part of the places of adornment, except for that which is apparent from her (in
other words, her hands and face). Fifthly, it is permitted for her to display
what is above her awrah in her private life between her maharim.
All of the evidences for these rules indicate that the basis is that men
are segregated from women, and so each of them lives in a different sphere of
life than the other. Along with this, the woman has had certain issues made
permitted, recommended and obligatory upon her. Therefore, it is imperative
that she undertakes what is obligatory, and recommended, and permitted, but
without tabarruj (beautification which attracts attention) and with the
clothing which Allah (swt) described in the Quran with His (swt) words “and
to draw their veils all over” (TMQ
24:31) is the upper/outer clothing; whereas His (swt)
words “draw their jilbabs all over their bodies” is referring to
the clothing from underneath, because the jilbab is worn above the
clothing. Al-Jawhari said in al-Sihhah “The Jilbab is the cover
and some say it is a sheet”. In the al-Muheet dictionary it mentions “the Jilbab
is in the form of the Sirdab or the Sinmar, which is the gown or
a large garment for women under the cover, or conceals her clothing like a
cover”. And to “draw” (idnaa) clothing is to lower it to
the bottom; it is said “draw the cover, lower it”, and the meaning of
drawing here is lowering, and the only meaning of lowering the clothing is to
lower it to the bottom. And His (swt) words “in such a way as not to show
their adornment” (TMQ 24:60)
is with respect to the open display of beautification (tabarruj).
Therefore, she is allowed to go out dressed in accordance with what the Shari’ah
specified for her, and meet with men in order to undertake what the Shari’ah
allowed her to do, such as buying, selling, employment, appointing proxies,
custody and so on, and to carry out was has been made obligatory upon her such
as hajj and paying the Zakah, or recommended upon her such as
voluntary charity, helping the poor, treating the sick and so on. These needs
have been confirmed from the legislative angle for her by the Shari’ah,
whether they were obligatory, recommended, or permitted, and has confirmed the
gathering of men and woman while they are undertaken. Therefore, these
evidences indicate that the method of life in Islam is to segregate men from
the women in the private sphere, and allow men and women to gather in the
public sphere in order to carry out whatever was obligatory, recommended, or
permitted upon them with the dress in accordance with what the Shari’ah
specified to her. These are the evidences for this article.
Article 114
The woman has been given the same rights as man, and whatever was oblied
upon man is also obliged upon the woman, except that which was specified for
her or him by the Shari’ah
evidences. Accordingly, she has the right to partake in trade, agriculture and
industry, and to undertake contracts and transactions, to possess all forms of
property, to invest her wealth whether personally or through proxy, and to
personally carry out all worldly affairs.
The evidence for this article is that when the
Legislator (swt) addressed the worshippers, He (swt) addressed them in their
characteristic as human beings, with no concern as to whether the one addressed
was male or female. Allah (swt) said “O mankind, Verily I
am sent to you all as the Messenger of Allah” (TMQ
7:158), “O mankind, fear Allah” (TMQ 4:1), “O you who believe,
answer Allah and the Messenger” (TMQ 8:24), “Fasting has been
prescribed for you” (TMQ 2:183),
“Whoever of you witnesses the
month, must fast” (TMQ 2:185), “And
establish prayer” (TMQ 2:43), “Take from their wealth” (TMQ 9:103), “Sadaqah is only for the poor and destitute” (TMQ 9:60), “And those who hoard gold and silver” (TMQ 9:33), “And Allah permitted trade and forbade usury” (TMQ 2: 275), amongst many other similar texts. In all
of these the Legislator (swt) addresses humankind with a general address
irrespective of whether the one addressed was male or female. And the
generality of the address of the Legislator (swt) remains upon its generality.
Accordingly, the Shari’ah came for humankind and not for men in their
characteristic of being male, or for women in their characteristic of being
female, rather for mankind from the angle of being human. Therefore, whatever
the Shari’ah commanded came for humankind, and whatever it includes in
terms of rights and obligations are for and upon humankind. This is the
evidence for the part of the article which mentions that the woman has the same
rights and obligations as the man, because the Shari’ah came for
humankind, and both male and female are human, and it did not come specifically
for woman or man, and so the two of them are equal in respect to the address of
the Legislator (swt) regarding the Shari’ah rules for humankind.
This generality in the address of the
Legislator (swt) remains upon its generality in everything, and remains upon
its generality in every rule as long as the Shari’ah did not relate it
through a Shari’ah text as a rule specific for women or men, in
which case that rule alone that the text addressed would be specific to women
or men. The Shari’ah remains upon its generality addressing humankind
irrespective of gender, “O mankind, Verily I
am sent to you all as the Messenger of Allah” (TMQ 7:158), and all of the remaining rules remain upon
their generality for humankind irrespective of gender “O you who believe, answer Allah and the
Messenger” (TMQ 8:24), “And obey Allah and the Messenger” (TMQ
3:132), “Whoever of you witnesses the month, must fast” (TMQ 2:185), “And take as witness two just persons from among you” (TMQ
65:2) and whatever else came regarding the rules. All of these remain upon
their generality which addressed humankind without regard as to whether they
were male or female.
Therefore, in origin the Legislator (swt) made
the Shari’ah for humankind, not for men or women specifically, but
rather for both of them as human beings. Then, the Legislator (swt) laid down
some rules specific for women and some specific for men, however this
specificity is restricted to those rules alone and does not go beyond them or
the texts which came to explain them. Neither of them is charged with a rule
specifically unless there is a clear text related which specifies it to one of
the two genders. So the specification of women or men with certain rules is an
exception to the generality, and so the Shari’ah remains upon its
generality as do all of its rules, and any exception is limited to what the
text mentions and does not go any further. For example, there are specific
rules for women such as leaving prayer, and eating in Ramadan during the
menstrual cycle, and such as making the witness statement of a single woman
sufficient in those cases which only they would be privy to such as virginity
without requiring the normal condition regarding witnesses, as this is specific
to women and there are texts regarding it, but it does not apply to anything
else at all; rather she remains addressed by the address of the Legislator
(swt) in the same manner as man is, since the address is for humankind and not
for a specific gender. Also, for
example, there are rules which are specific to men such as ruling or authority,
and so it is not valid for anyone other than a man to undertake it. This is
specific to men, and has had a text narrated regarding it, and so it is
specific to men alone. However this
specification is related to ruling alone and not the judiciary or managing the
departments of the state because the text came regarding ruling, or those who
govern, and nothing else. And it is resricted to what came in the text alone,
and will not be specified at all by anything which is not related by text;
rather the man remains addressed by the address of the Legislator (swt) in the
same manner as the woman since the address is for humankind and not for a
specific gender.
Based upon this, there is nothing in Islam called women’s rights or men’s
rights, or women’s obligations and men’s obligations. Rather, the rights and
obligations in Islam are for humankind in their characteristic as human beings,
without any attention as to whether they are male or female; rather
irrespective of their gender. Accordingly, all the laws of the Shari’ah
are for humankind while some are exceptions - so sometimes the woman is
addressed in her characteristic as a female by specific text and at other times
the man is addressed in his characteristic as a male by specific text.
Due to the generality of the Shari’ah and its rules, the woman can
work in trade, agriculture, and industry in the same way as the man, since the
address of the Legislator (swt) came for humankind.
She can undertake all the verbal actions of contracts and transactions,
since the address of the Legislator (swt) came for humankind.
She can own any type of property and invest her wealth whether personally
or otherwise, since the address of the Legislator (swt) came for humankind.
She can teach and carry out Jihad
since the address of the Legislator (swt) came for humankind.
She can partake in politics, join political parties and account the
ruler, since the address of the Legislator (swt) came for humankind.
She can directly engage in all the affairs of public life, in exactly the
same manner as the man, in everything due to the citizen and whatever is
required to make a living, since the address of the Legislator (swt) came for
humankind.
Article 115
It is permitted for a woman to be appointed in civil service and
positions in the judiciary apart from the Court of Injustices. She can elect
members of the Ummah’s council, and be a member herself, and she can
participate in the election of the Head of State and in giving him the pledge
of allegiance.
The evidence for the article is the evidence for employment, since the
civil servant and judge are employees. The evidence for employment is general
and unrestricted. It is narrated that the Prophet
said “Give the employee his wages before
his sweat dries” (reported by Ibn Maja from
Abdullah Bin Umar). The word “employee” here is general and
encompasses both women and men. In the same vein, al-Bukhari reported from Abu Huraira that the Prophet
said “I will be opposed to
three on the Day of Judgement” until he
said “and a man who employed
an employee, and did not pay him though he completed his work”; the
word employee is unrestricted and encompasses both women and men. The
definition of employment is “a contract upon an exchange of a service for
remuneration” and the work in government departments and judiciary is a
service, undertaken upon a contract between the State and the civil servant in
exchange for remuneration, which is the salary. Umar b. al-Khattab (ra)
appointed al-Shifa, who was a woman from his tribe, as a judge in the market
place (hisbah) in Madinah, though it is not permitted for a woman to be
a judge of the Madhalim court and nor to be the chief judge responsible
for the Madhalim judiciary, since that is considered a ruling position.
As for the Ummah council which is for consultation and accounting,
consultation (Shura) is confirmed by a general evidence “And
consult them in the issue” (TMQ
3:159), “And who conduct their affairs by mutual Shura
(consultation)” (TMQ 42:38),
and when the Messenger
saw that the Muslims refused to
shave and cut their hair, he
went to Umm Salamah and said to
her “The Muslims are destroyed” as reported by al-Bukhari from
al-Mawar Bin Makhzama, and he
told her what had happened, so she
said to him
“Shave your
head, they will not differ from you”, so he
followed her advice and as a
result the Muslims shaved and cut their hair. Then she said to him “Set
off with them quickly”, and so he
took her advice. So he
took the opinion of a woman, which
indicates that he took her opinion in any issue whether politics or otherwise.
The member of the shura council is simply a proxy to represent opinion,
and it is permitted for a woman to be appointed as a proxy in the same manner
as a man, due to the generality of the evidence. The issue of accounting is the
same since the texts regarding enjoining the good and forbidding the evil are
general, encompassing both men and women – Muslim reported from Umm Salama that
the Messenger of Allah
said “There will be Amirs, where you recognizes some of what
they do and deny some. Whoever recognized he would be free of responsibility,
and whoever denied he will be safe; but whoever accepted and followed (he will
be not)” They said: Should we not fight
them? He
said –
no so long as they pray” and prayer here is an allusion to ruling by
Islam, and the narration is general for both men and women. So just as men
account the rulers, so do women.
As for the issue of
men accounting the rulers, al-Bukhari and Muslim reported from Abu Huraira: “When
the Messenger of Allah died and Abu Bakr took leadership, and those from the
Bedouins disbelieved, Umar said: How can we fight people and the Messenger of
Allah said I have been ordered to fight the people until they say La ilaha illa
Allah, and whoever does so then their wealth and blood are protected except by
its right, and their account is with Allah. And so Abu Bakr said: I swear by
Allah, I will fight whosoever differentiates between the prayer and the zakah,
since zakah is the right of the wealth, By Allah, if they deny me a young goat
that they would have paid to the Messenger of Allah I would fight them over
their denial. Umar said: By Allah, it was only that Allah had opened the chest
of Abu Bakr (to understanding), and so then I realised it was the truth”. As for women accounting the
ruler, it is mentioned by al-Qurtubi in his Tafsir, al-Amidi in al-Ihkam
and al-Ghazali in al-Mustasfa that a woman accounted Umar (ra) when he prohibited
people from giving dowry of greater than four hundred dirham. She said to him: You have no right to do this Umar. Have
you not heard the words of Allah “and you have given one of them a
Qintar (of gold i.e. a great amount as dowry, take not the least bit of it
back” (TMQ 4:20) so he said: A woman is correct, and Umar is wrong.
With respect to her participation in elections for the Khalifah
and giving him the pledge of allegiance, the narration of Umm ‘Atiyyah
explicitly mentions how the women gave the pledge of allegiance, reported by
al-Bukhari from Umm ‘Atiyyah: “We gave the Prophet
the pledge of allegiance and he read for us that they should not disbelieve in
Allah, and he forbade us from wailing (over the dead), so one of us withdrew
her hand”, and the verse “And if the believing women come to give you the
pledge of allegiance” (TMQ
60:12) is also explicit in mentioning the woman’s pledge
of allegiance, and therefore it is permitted for her to elect the Khalifah
and give him the pledge of allegiance.
Article 116
It is not permitted for a woman to take a ruling position; so she cannot
be a Khalifah, nor an assistant, governor or ‘Amil, nor undertake
any action considered to be ruling. In the same manner she cannot be the head
judge and nor a judge in the Madhalim court, nor the Amir of Jihad.
The evidence for this article is what al-Bukhari narrated from Abu Bakra
who said “When the Messenger
of Allah
was
informed that the daughter of Kisra had been given the reign over the Persians
he said ‘A people who appoint a woman over their command will never succeed’”. This explicitly mentions that
a woman is not permitted to take a ruling position. Accordingly, women are not
permitted to undertake anything at all from any of the actions of ruling,
whether the Khalifah, assistant, governor, Supreme judge, judge in the Madhalim
court, or ‘amil in the district, due to the explicitness of the narration
forbidding it.
As for women not
taking the position of the Amir of Jihad, despite it not being a ruling
position, this is because Jihad is not obligatory upon women and so she
cannot assume leadership over
those for whom Jihad is obligatory.
Article 117
The woman lives in public and private spheres; in the public sphere she
is permitted to live with women, maharim
men, and foreign men (men whom she can marry) on the condition that nothing
other than her face and hands can be
revealed, and that the clothing is not revealing, besides there is not
any open display of adornments. As for the private sphere, she is not permitted
to live with anyone other than women and her maharim, and she is not
permitted to live with unrelated/foreign men. She is restricted by all the Shari’ah
rules in both spheres.
The evidence for this article is the verse mentioning seeking permission “O
you who believe, do not enter houses other than your own, until you were
familiar with (sought permission) and greeted those in them” (TMQ 24:27), and the verse regarding
revealing the beautification to the maharim - “and not to show off
their adornment except that which is apparent, and to draw their veils all over
and not to reveal their adornments except to their husbands, or fathers, or
their husband’s fathers, or their sons, or their husband’s sons, or their
brothers or their brother’s sons, or their sister’s sons” (TMQ 24:31) - which are the evidences
for the private sphere. The verse mentioning the complete clothing “and
to draw their veils all over Juyubihinna (i.e. their bodies, faces necks and bosoms” (TMQ 24:31) and the Jilbab
“draw their Jilbabs (veils) all over their bodies”, and the verse
regarding the prohibition of the open display of adornments “ in
such a way as not to show their adornment” (TMQ 24:60), along with the texts which indicate the obligatory,
recommended and permitted actions which Allah (swt) legislated for woman and
man without distinction, are all evidences for the public sphere.
However, when Allah (swt) permitted the woman to participate in the
public sphere with men, such as the permissibility for her to participate in
trade, agriculture, industry, the civil service, the judiciary, membership of
political parties, accounting the ruler, and dealing with life’s affairs in the
same manner as the man, at the same time He (swt) laid down specific rules. So
the clothes which she is permitted to come out with in the public sphere have
been specified, in that she has to cover all of her body other than her hands
and face, and not display her adornments and beautification openly; Allah said “and
not to show off their adornment except only that which is apparent” (TMQ 24:31). Ibn ‘Abbas said this is
the face and hands, as reported by al-Bayhaqi in al-Sunan al-Kubra. The
Prophet
said “If a girl reached
puberty (indicated by starting menstrual cycle), it is not correct that any
part of her should be seen other than her face and two hands up to the wrists” (reported by Abu Dawud as a Mursal
narration), and Allah (swt) said “in such a way as not to show their
adornment” (TMQ 24:60),
and the Prophet
also said “Any woman who put
on perfume, and then walked alongside people in order for them to smell her, is
a fornicator” (reported by Al-Nasa’i from Abu Musa al-Ash‘ari, and
al-Hakim authenticated it and al-Dhahabi confirmed it).
As for how the woman should live in the private sphere, she has been
prohibited from living with anyone other than women, maharim or
children, and she has been prohibited from appearing in this private sphere in
light clothes except in front of those just mentioned. Allah (swt) said “and
not to show off their adornment except to their husbands, or fathers, or their
husband’s fathers, or their sons, or their husband’s sons, or their brothers or
their brother’s sons, or their sister’s sons, or their women, or the slaves
whom their right hand possesses, or old male servants who lack vigour, or small
children who have no sense of feminine sex.” (TMQ 24:31).
It is not permitted for anyone to come into her private sphere before
taking permission, irrespective of whether they were mahram or not;
Allah (swt) said “do not enter houses other than your own, until you were
familiar with (sought permission) and greeted those in them” (TMQ 24:27); and the Messenger
ordered a man to take permission
before entering his mother’s place.
These are the evidences for this article.
Article 118
It is not permitted for a woman to be alone with a non-mahram. It
is not permitted for her to reveal the adornments (tabarruj) and the ‘awrah
in front of foreign men.
This article explains three issues:
Firstly – the prohibition of khulwah (to be
alone in a private space with a non-mahram). The evidence is the words
of the Messenger
“A man
should not be in khulwah with a woman, since the third of them is the devil”, reported by Ahmad with an authentic chain from Umar (ra). And his
words “A man should not be
in khulwah with a woman unless her mahram was with her” (reported by
Muslim).
Secondly – prohibition of open display of adornments (tabarruj),
or anything which attracts attention. The evidences are His (swt) words “in
such a way as not to show their adornment” (TMQ 24:60) and His (swt) words “and not to stamp their
feet so as to reveal what they hid of their adornment” (TMQ 24:31). This is a prohibition of
one of the actions of tabbaruj, and tabarruj linguistically means
to reveal the beautification. It is mentioned in al-Muhit dictionary
“she did tabarruj – she displayed her beauty to the men”, which is also the Shari’ah
meaning for it. So tabarruj is different from beautification,
because beautification is one thing whereas revealing that beautification is
something else; it is possible for her to be beautified and not doing tabarruj
if her beautification was normal and not of the type to attract attention.
Therefore the meaning of prohibiting tabarruj is not the absolute
prohibition of beautification, since tabarruj is the revealing of the
beauty and charms to the foreign men; it is said the woman did tabarruj,
she revealed her beauty and charms to foreign men. Also supporting these texts
that prohibited the actions of tabarruj, is that with investigation it
becomes apparent that they only prohibit the revealing of beautification and charms,
and the prohibition of beautification generally is not something which is
understood from them. So the words of Allah (swt) “and not to stamp their
feet so as to reveal what they hid of their adornment” (TMQ 24:31) is plainly prohibiting
the revealing of the beautification, since He (swt) said “so as to reveal
what they hid of their adornment”. It is narrated from Abu Musa
al-Ash‘ari who said “The Messenger of Allah said “Any woman who put on
perfume, and then walked alongside a people in order for them to smell her, is
a fornicator””, in other words is like a fornicator, reported by
Al-Nasa’i and al-Hakim who authenticated it. This narration is also prohibiting
an action of tabarruj, and it is clear from his words “put on
perfume, and then walked alongside a people in order for them to smell her”
that it is a prohibition of revealing the beautification, in other words the
putting on of perfume so that men could smell her. It is narrated by Abu
Hurayrah who said “The Messenger of Allah
said “Two categories of people of
the hellfire that I haven’t seen until now: women naked while dressed, they
will incline and seduce, upon their heads will be something like the humps of
inclining camels, they will not enter paradise nor smell its fragrance, and men
who will have sticks like the tails of cows which they use to whip people” (reported by Muslim); so this is also from the actions of tabarruj.
It is clear from his
words “naked while dressed”
that it means the revealing of adornments. His
words “incline and seduce” is
talking about movements that attract men’s attention. And the words “upon
their heads will be something like the humps of inclining camels (bukht)” is
talking about revealing the beautification done to their hair, in other words
treating and heaping it around a turban or headscarf or anything similar until
it became like the hump of a camel. And the “bukht” is the Afghani
camel, in other words they arranged their hair to look like the hump of an
Afghani camel. This is clearly prohibiting the revealing of beautification to
men. And similar to this are all the texts which are related to the prohibition
of any action of tabarruj, all of which make it clear that the
prohibition is regarding revealing the beautification in order to provoke men’s
inclination towards the woman. And this is supported by the linguistic meaning
of tabarruj which is to reveal the beautification, which is different
from beautification itself. Therefore, what is forbidden is the tabarruj
with its linguistic indication, and by the indications of the narrations which
prohibit any of its actions, whereas beautification without tabaruuj is
not forbidden.
Thirdly, the prohibition of uncovering the ‘awrah
in front of foreign men (men they are able to marry). It is mandatory upon the
woman to conceal all of her body apart from her face and hands, according to
the evidence “and not to show off their adornment except that which is
apparent” (TMQ 24:31);
Ibn ‘Abbas said this means the face and hands as reported by al-Bayhaqi in al-Sunan
al-Kubra, Ibn ‘Abd
al-Barr in al-Tamhid and Ibn Kathir in al-Tafsir. And the
Messenger
said “If a girl reached
puberty (indicated by starting menstrual cycle), it is not correct that any
part of her should be seen other than her face and two hands up to the wrists” (mursal narration reported by
Abu Dawud), at which point he
grasped his
arm, and there was the
distance of a grasp between his
hand and where he
grasped his arm. Therefore, the
whole of the woman’s body apart from her face and hands are awrah, and
so it is obligatory for her to conceal it.
The Legislator (swt) made it a condition of the clothing that it covers
the skin, in other words obligated covering the skin by what covers its colour,
or in other words the skin and its colour whether white, red, dark, black or
anything else. In other words, the cover should cover the skin and its colour
such that the colours of the skin underneath are not known, otherwise it would
not be considered as a cover for the ‘awrah and rather the ‘awrah would
be considered visible and not covered, since the Shari’ah cover is that
which conceals the colour. The evidence that the Legislator (swt) obligated
covering of the body by covering the skin such that its colour is not known is
from his
words “it is not correct
that any part of her should be seen”. This narration is a clear proof
that the Legislator (swt) made it a condition of covering the ‘awrah that
nothing should be seen from it, or in other words the skin should be covered by
something that does not reveal what is behind it, and so it is obligatory for
the woman to cover her ‘awrah by a dress which is not delicate, in other
words does not convey what lies behind it and does not disclose what is under
it.
Article 119
It is prohibited for any man or woman to undertake any work which could
undermine the morals, or causes corruption in the society.
The evidence for this article is what was narrated from Rafi’ b. Rifa’ah
who said “The Prophet
forbade us from benefiting from
the slave woman except that which she did with her hands, and said ‘in this
manner’ with his fingers, such as bread-making, sewing, and inscribing” reported by Ahmad and authenticated by al-Zayn , as well as al-Hakim who also authenticate it; in other
words he
prohibited the woman from any work
which took advantage of her femininity, while allowing any other type of work.
This is understood from the part of the narration which mentions “except
that which she did with her hands”, in other words intended to benefit
from her efforts, and its understanding is the prohibition of taking advantage
of her femininity. Also, the Shari’ah principle “The means to
something forbidden is also forbidden” prohibits any work that could lead
to anything forbidden. And the Shari’ah principle “If one type of a
permitted thing leads to a haram, only that one is prohibited, and the thing
remains permitted” prohibits every person, male or female, from working in
a job originally permitted for men and women, if the work for that person specifically
would lead to a haram for him, or the
Ummah, or the society, whatever type of haram that may be.
Article 120
Marital life is one of tranquillity; and the couple should live together
as companions. The guardianship (qawwamah) of the husband over the wife
is a guardianship of care and not ruling. It has been made obligatory for her
to obey him, and obligatory upon him to financially support her according to
the expected standard of living of one like her.
The evidences for this article are the words of Allah (swt) “It is
He Who created you from a single person, and created from him his wife, in
order that he live with her” (TMQ
7:189), and His (swt) words “And from among His Signs is that he
created from you wives in order that you may live with them, and He has put
mercy and affection between you” (TMQ
30:21), and living here means contentment. The words of
Allah (swt) “And they (women) have rights like those over them according
to what is reasonable” (TMQ
2:228), and Ibn ‘Abbas said “They have the right of good
companionship, and being taken care of, in the same way that she is to be
obedient according to what has been obligated over her with respect to their
husbands” as mentioned by al-Qurtubi in his Tafsir. And His
(swt) words “and live with them honourably” (TMQ 4:19), and the living (‘ishrah)
is the mixing and blending. It is narrated from Jaber that the Messenger of
Allah
said in his address in the
farewell pilgrimage “Fear Allah with respect to the women, since you took
them as a trust with Allah, and you made them permissible to yourselves with
the Word of Allah” (reported by Muslim). And it is narrated that he
said “The best of you are
the best of you towards their families, and I am the best of you to my family”,
reported by Al-Tirmidhi from Aaisha (ra), and he considered it Hasan Sahih
gharib, and Ibn Hibban, and al-Hakim who authenticated it. And he
said “The best of you are
the best of you towards their wives”, reported by Al-Tirmidhi from Abu Hurayrah and he
said it was Hasan Sahih. And he
used to have a good close
relationship with his family - playing with his wives, acting kindly towards
them and joking with them. If he
had prayed the isha prayer, and entered his house, he would chat
with his wife a little before sleeping and make her feel close in that way. All
of these evidences indicate that the marital life is one of tranquillity and
that the husband must do whatever is required to make the marital life
tranquil. It is narrated from Ibn ‘Abbas that he used to say “I beautify
myself for my woman, in the same way she beautifies herself for me. I love to
take every right I have upon her cleanly, which means her rights over me are
obligatory, since Allah (swt) said “And they have rights, like those over them”
(TMQ 2:227)” (reported
by al-Qurtubi in his Tafsir).
Though Allah (swt) has made the man guardian over the household, since He
(swt) said “And the men are guardians (qawwamun) over the women” (TMQ 4:34), this guardianship is a
guardianship of care and not one of rule and authority. In the al-Muhit dictionary
it says “established … the man and the woman, and upon her, what he prohibited
and he fulfils her issue”, which indicates that the meaning of the guardianship
of man over woman from a linguistic point of view is to pay for her maintenance
and carry out whatever she needs, and so this linguistic meaning is the meaning
used in the verse since there is no Shari’ah meaning that has been
related regarding it. Therefore this is the meaning of “guardians
(qawwamun) over the women”, and so it is necessary that the
guardianship of the man over the woman is to fulfil her issues, and for his
relationship with her to be the relationship of companionship, which is how
Allah (swt) characterised it saying “And His companion” (TMQ 80:36), meaning his wife.
The Prophet
used to be a companion to the
wives in his household, and not as a leader dominating over them, and they used
to consult him
and discuss with him
. It is narrated from Umar b. al-Khattab (ra) that he said “By Allah,
in Jahiliyyah we never used to take account of our women in any issue, until
Allah revealed whatever He has regarding them, and apportioned for them what
has been apportioned, so while I was thinking over an issue my wife said to me
‘If only you did such and such’. So I replied to her ‘What business is it of
yours, and why are you talking about an issue that I am dealing with?’ Then she
said to me ‘How strange it is to you O Ibn al-Khattab, that you don’t want
anyone to answer you back, and your daughter answers back to the Messenger of
Allah until he spends the whole day angry’. So Umar (ra) said “I
gathered my cloak and left my place until I reached Hafsa, and so I said to her
‘O my daughter, you answer back to the Messenger of Allah until he spends his
day angry?’ She replied ‘By Allah, we do answer back to him’ Then I said ‘You
know that I warn you about the Punishment of Allah and the anger of His
Messenger.” And it is narrated from Anas that he said “I gave
some of the wives of the Prophet
food in a bowl, then Aaisha
knocked the bowl with her hand and so whatever was in it fell out, and so the
Prophet
said ‘Food for food and container
for container” (reported by Al-Tirmidhi
and he said it is Hasan Sahih).
These narrations indicate that the guardianship of the Messenger
over his wives was one of care and
not one of rule, and so they were like companions to him and not subjects, as
indicated by his relationship with them being one of companionship.
Allah (swt) has made it obligatory for the woman to obey her husband and
has prohibited her from disobedience; He (swt) said “As to those women on
whose part you see ill-conduct, admonish them, refuse to share their beds, and
beat them (lightly), and if they return to obedience then do not seek any way
(of annoyance) over them” (TMQ
4:34). And the husband has been obliged to pay for her maintenance;
Allah (swt) said, “Let the rich man spend (upon her) according to his
means, and the man whose resources are restricted should spend according to
what Allah has given him” (TMQ
65:7). The Prophet
said “You have right over
your women, and your women have right over you. As for your right over your
women, they should not prepare your bed for anyone you dislike, nor permit
anyone you do not like into your home. Their right over you is for you to be
good to them in providing their food and dress” (reported by Al-Tirmidhi from Ibn al-Ahwas from his father). In
the narration of Muslim from Jabir: “you have right over them, and that
they should not allow anyone to sit on your bed whom you do
not like…Their rights upon you are that you should provide
them with food and clothing in a fitting manner”, and it is narrated
that Hind came to the Messenger of Allah
and said: “O Messenger of
Allah, Abu Sufyan is a stingy man and doesn’t give me and my child enough
maintenance except what I take from him without his knowledge” and so he
replied “Take whatever is sufficient for you and your child that is
reasonable” (agreed upon narration from Aaisha). Accordingly, these are
the evidences for this article.
Article 121
The married couple must fully assist each other in the housework, and
the husband must carry out all the work which is usually undertaken outside the
house, while the wife carries out all the work which is usually undertaken
inside the house, according to her capability. He must provide her with a
servant as required to assist with the tasks that she is unable to carry out
alone.
The evidence for this article are the actions and words of the Messenger
, since he
“obliged
his daughter Fatimah with the housework, and ‘Ali with the outdoor work” reported by Ibn Abi Shaybah from Damrah b. Habib, and although Abu
Bakr Bin Maryam al-Ghassani[YUN3] is in the chain of the narration, Abu Hanifah took it
and Ibn Hajar said regarding it in al-Fath “that was deduced from the
narration of ‘Ali b. Abi Talib that when Fatima came to the Prophet and asked
him for a servant he indicated to her to what should be said when you go to
bed”. And the narration that al-Bukhari reported from ‘Ali b. Abi Talib (ra), “Fatimah came
to the Prophet asking for a servant. He said, “May I inform you of
something better than that? When you go to bed, recite "Subhan Allah’
thirty three times, 'Alhamdulillah' thirty three times, and 'Allahu Akbar'
thirty four times”. ‘Ali added: I have never failed to recite it ever since.
Somebody asked, even on the night of the battle of Siffin?” He said, No, even
on the night of the battle of Siffin.”
This indicates the obligation of the wife carrying out the housework,
since her request for a servant is an evidence for the heaviness of the
housework upon her, and if the housework was not obligatory upon her there
would be no indication from the heaviness, since she would not have been
obliged to do the housework, and so then there would have been no heaviness and
hardship. This indicates that the wife does the housework according to her
capability, and if she requires a helper or more then they are provided for
her, according to the evidence of Fatimah’s request from the Messenger. And it
indicates that the husband undertakes the work outside of the house, and in
such a manner they assist each other.
Article 122
Custody of the child is a right and duty upon the mother, irrespective
of whether she is a Muslim or not as long as the child needs this care. If the
child no longer needs the care, then the situation is examined. If both of the
parents are Muslim then the child, whether boy or girl, chooses whomever they
would like to live with, and they will join whomever they choose, irrespective of
whether that was the man or woman. If one of them is non-Muslim, then there is
no choice between them; and they rather will join the Muslim parent.
The evidence for this article is what was narrated by Abdullah Bin ‘Amru
b. al-‘As: “A woman said “O Messenger of Allah, this is my son whom my
stomach carried, my breast is a water-skin for him, and my lap is a guard for
him. His father has divorced me and wants to take him away from me”. So he
said “You have more right to him
as long as you do not remarry””
(reported by Abu Dawud and al-Hakim who authenticated it, and al-Dhahabi
confirmed it). This indicates that the mother has more right to the child while
they still require nursing, since the Messenger
ruled for her to continue nursing
him as long as she was not married, and did not give the child the choice,
which indicates that he still required nursing. It is narrated by Ibn Abi
Shaybah from Umar (ra) with an authentic chain whose reporters are all
trustworthy that he divorced Umm ‘Asim, then came to her while ‘Asim was in her
lap, and wanted to take him from her.
The two of them argued until the young boy began crying, and so they went to
Abu Bakr as-Siddiq (ra) who said “Her touch, lap and smell are better for
him than you, until he grows up and then can choose for himself”.
Accordingly the young child who still needs nursing remains the mother’s right
and it is obligatory upon her and similarly upon her mother and grandmother,
and upon every women from those who have the right of custody.
When the child becomes older, such that they are above the age of nursing
which is by confirming whether he can do without it or not – which differs
between children depending upon their circumstances – so a boy may not require
it and he was five years old, and another when they were younger or older, and
should be according to an expert’s opinion. Based upon that, if they were not
reliant upon nursing they are given the choice between the parents; Abu
Hurayrah reported “The Prophet gave a boy the choice between his mother
and father” (reported
by Ahmad and Al-Tirmidhi who authenticated it). And Abu Dawud reported a
narration from Abu Hurayrah that Ibn Hibban authenticated: “While I was
sitting with the Prophet a woman came and said: O Messenger of Allah, my
husband wants to take my son, and he brings me water from the well of Abu
‘Inaba, and helps me, and so the Prophet said…This is your father and this is
your mother, so take the hand of whichever of the two you wish. So he took the
hand of his mother and so she left with him.”
These evidences indicate that once the child, whether boy or girl,
reaches the age that they no longer require suckling and nursing, they are
given the choice between their mother and father, irrespective of whether they
were three years old or more as long as they no longer required nursing. If
they still required nursing then the ruling is given in favour of the mother
and the child is not given any choice.
However, if the women, such as the mother, was a disbeliever and requested
to nurse her child, then if they were lower than the age of suckling or
requiring nursing then the child is ruled in her favour in the same way as the
Muslim woman, with no difference between them due to the generality of the
narration “You have more right to him as long as you do not remarry”.
As for when the child is above the age of nursing, such that they are at the
age or above the age they no longer need to be suckled, and no longer require
nursing, then the child is not given the choice but rather is given to the
Muslim parent. If the wife was the Muslim then the child would be given to her
and if the husband was the Muslim then the child would be given to him, due to
His (swt) words “And never will Allah grant to the disbelievers a way
over the believers” (TMQ
4:141), and custody gives the custodian a way over the Muslim. Also due
to his
words “Islam is above and
nothing is made above it”, reported by al-Daraqutni from ‘Aith
al-Muzni with a Hasan chain, and the custodian is above the
child. Keeping the child under the custody of the disbeliever who will teach
them disbelief is not allowed, and for that reason the child is taken from
them.
As for what was narrated by Abu Dawud from ‘Abd alHamid b. Ja‘far from
his father from his grandfather Rafi‘ b. Sinan that “after he had
embraced Islam, his wife refused to do likewise and so she went to the Prophet
and said “She is my daughter. She
has finished suckling or is about to”. Rafi’ said “She is my daughter”. The
Prophet
said to him sit on one side, and
told his wife to sit on the other. He
then said “Call her”, and so the
girl inclined to her mother, and so the Prophet
said “O Allah, guide her”, and
then she inclined to her father, and so he took her”. This narration is authenticated by al-Hakim and al-Dhahabi agreed with
him, and al-Daraqutni mentioned that the girl’s name was Umayra. Ahmed and
Al-Nasa’i both narrated this narration with a different chain, Al-Nasa’i narrated from ‘Abd al-Hamid b. Ja’far al-Ansari from his
grandfather “that his grandfather embraced Islam, while his wife refused,
and so he brought his young son who has not reached puberty, and said The
Prophet
sat the father in one place and
the mother at another, and then gave the young boy the choice and said “O Allah
guide him”, and so he went to his father”. Ibn
Jawzi mentions that between the two chains of narrations the chain that
mentions that it was a boy is the more correct.
The Messenger
was not content with what the
child had chosen, rather he prayed for him and so he chose his Muslim father,
or in other words the child was given to the Muslim of the two parents.
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