Aḥmad Zaki Yamani
1. The woman's inheritance as compared to man's
2. Women's Travel
3. Women as witnesses before the law
Certain issues always raise questions when we maintain that Islam treat men and women on equal basis. Hence, it is pertinent to consider these issues in order to show that the differences that Islam allows do not in any way detract from the status of women as equal to men. These issues are:
- The woman's inheritance as compared to man's
- Women's Travel
- Women as witnesses before the law.
1. The woman's inheritance as compared to man's
In pre-Islamic Arabia, women inherited nothing, since they were considered unqualified to inherit. A woman was treated like a child because she did not ride horses, carry weapons, fight the enemy, or take booty. Therefore, she was deprived of the right to inherit. Only sons inherited their parents, and their right of inheritance was based on age, with the eldest taking all. Should a person die leaving behind only daughters, all his estate was taken over by the girls' uncles.
When Saʿd ibn al-Rabiʿ a companion of the Prophet from the Ansar, died, leaving behind two daughters, their uncle came over and took all Saʿd's estate, leaving nothing for the girls. Their mother complained to the Prophet, and he said: “God will rule on such matters” The verses outlining the Islamic system of inheritance were then revealed. These are:
“God has this to enjoin on you with regard to your children: The male shall have a share equal to that of two females. If there are more than two women, they shall have two-thirds of what [their parents] leave behind; and if there is only one, she shall have one-half of it.
As for the parents [of the deceased], each of them shall have one sixth of what he leaves behind, in the event of his having a child; but if he leaves no children, and his parents be his heirs, then his mother shall have one-third; and if he has brothers and sisters, his mother shall have one-sixth after [deducting] any bequest he may have made, or any outstanding debt.
With regard to your parents and your children, you do not know which of them is of more benefit to you. This is, therefore, an ordinance from God God is all-knowing, wise.
You shall inherit one half of what your wives leave behind, provided that they have left no child; but if they have left a child, then you shall have one-quarter of what they leave behind, after [deducting] any bequest they may have made or any outstanding debt. And they [i. e. your widows] shall-inherit one quarter of what you leave behind, provided that you have left no child; but if you have left a child, then they shall have one-eighth of what you leave behind, after [deducting] any bequest you may have made or any outstanding debt. If a man or a woman has no heir in the direct line, but has a brother or a sister, then each of them shall inherit one-sixth; but if there be more, then they shall share in one-third, after [deducting] any bequest which may have been made or any outstanding debt, neither of which having been intended to harm [the heirs]. This is a commandment from God; and God is all-knowing, gracious” (Q 4: 11-12)
This system, laid down by God, represented a great shock to the Arabs at the time. Some of them even hoped that the Prophet would forget it soon. How could the Prophet forget something God has made binding on Muslims for the rest of time?
Some people think that the first point in this system, 'The male shall have a share equal to that of two females, ' lays down a general rule for a woman's inheritance as compared with that of a man. This is an erroneous assumption. Many are the cases when a woman and a man take equal shares, and there are cases where a woman takes more than a man's share.
Giving a son twice the share of a daughter is due to various Islamic provisions on financial matters which are fundamentally different for men and women, sons and daughters. When a man wants to get married, he is required to pay a dowry, provide a family home and pay all his wife's living expenses, even though she may be wealthy. The woman, by contrast, receives the dowry, which becomes her own property. She does not bear any share of the family's expenses. She and her children must be fully looked after by her husband. Moreover, the man is duty bound to support his relatives if they need help, as in the case when such relatives are unable to earn their living, due to illness, old age, or other reasons. Women normally do not bear such a financial burden.
As already stated, the rule that a male inherits twice as much as a female applies to the children of the deceased. Otherwise, male and female may have equal shares, and in some cases, the woman's share may be greater. To give some examples:
- If the deceased is survived by both his parents, each takes a share of one-sixth.
- If the deceased is survived by his maternal half brother or half sister, and no nearer relatives block their inheritance, each of them inherits a share of one-sixth of the deceased's estate. If there are several maternal siblings, males and females, they all share equally a portion of one-third of his estate.
- When a woman dies leaving behind one daughter and her husband, the daughter takes one-half of her mother's estate, while the husband, who is most probably the daughter's father, takes one-quarter. This is a case where the female takes twice as much as a male.
There are numerous other examples, but the ones already cited are enough to explain that the rule that says, 'The male shall have a share equal to that of two females, ' is not an all-inclusive one to be applied in all situations. It certainly does not provide any evidence supporting the claim of inequality between man and woman. Its applicability in the case of children is due to the rules regulating family finances.
2. Women's Travel
Another complaint of women is that some Muslim countries impose restrictions on their movements. Thus they do not allow a woman to travel without a maḥram, or a suitable male companion. Nor do such countries allow a woman to enter their territories or depart without such a companion. In so doing, these countries rely on the rulings of the school of Fiqh that predominates in them. Such rulings are based on some Ḥadiths and these are taken at face value, without looking into their relevant circumstances or into rulings made by other schools of Fiqh based on a different approach to these same Ḥadiths. Because of these restrictions, women think that they are considered inferior to men, suffering more of ill treatment. It is important, therefore, to discuss the subject of the maḥram briefly, shedding some light on this question with the different views expressed by Islamic scholars.
According to scholars, a woman's maḥram could be her husband or a relative whom she can never marry, whether the block to such a marriage is due to blood relationship as in the case of her father or brother, or to breast-feeding, or to matrimonial relations as in the case of her father-in-law or stepson. It should be noted that a woman's husband is lawful to her, but he is considered able to look after her. Hence, he is a maḥram.
Scholarly views differ as to the distance of travel that requires a woman not to travel without a suitable male companion, or maḥram. Some scholars say that it is two days of travel, and some say three days, while others still say that it is the distance of a post, which was estimated at the time to be equal to half a day of travel. Imam Aḥmad, on the other hand, says: “A woman must not travel a long or short distance without a maḥram. 1“
We will see presently the different views on whether it is obligatory or not that a woman should be accompanied by a maḥram when she undertakes ordinary travel, or goes on pilgrimage or ʿumrah [i. e. mini-pilgrimage]. Before we go into this, it is useful to remember that scholars are generally of two categories: those who take any text in the Qur͗an or Ḥadith at face value and apply it to the letter, and those who pay due attention to the objective or the purpose it is meant to serve. This latter approach enables the scholar to better understand the text and the ruling it implies. The question of a woman's need to have a suitable male companion on her journey illustrates the difference between these two trends.
The texts that prevent a woman from travelling without a maḥram are contained in several authentic Ḥadiths. One of these quotes the Prophet as saying: “It is not lawful for a woman who believes in God and the Last Day to go on a trip that lasts for three days or more unless she is accompanied by her father, son, husband, brother or some other maḥram” Another Ḥadith reported by Abū Saʿid al-Khudri mentions that “The Prophet has forbidden that a woman should travel a two-day distance without being accompanied by her husband or a maḥram” [Related by Muslim]. The Ḥanbali school of Fiqh belongs to the category of scholars who take texts literally, as this is attributed to Imam Aḥmad ibn Ḥanbal himself.
Most scholars in other schools of Fiqh considered that the purpose of travelling with a suitable male companion, or maḥram, is to provide protection for the woman against any possible assault. This is particularly the case when we consider the nature of travel in the past, when caravans travelled in the desert during the day and rested at night. Moreover, caravans were sometimes attacked by bandits who killed travellers and looted. When a woman found herself alone on such a journey, she would very likely be exposed to assault by some ill intentioned individuals. Therefore, if the danger of assault against a woman traveller is averted through safe companionship, the personal maḥram may not be needed. This was what ʿUmar did when he permitted the Prophet's wives to travel for pilgrimage without maḥrams, sending with them instead ʿUthman ibn ʿAffan and ʿAbd al-Rahman ibn ʿAwf. Subsequently, ʿUthman did the same during his reign. [Related by al-Bukahri]. None of the Prophet's companions in Madinah objected to such arrangements, which means in effect a unanimous silent approval.
Moreover, the Prophet foretold of a time when a woman could travel alone without a maḥram yet in full security. He said to ʿAdiy ibn Ḥatim after someone came to him complaining of poverty, and another complaining of highway robbery: “ʿAdiy! Have you visited al-Hirah? “ ʿAdiy said that he had not visited it himself, but had been told about it. The Prophet said: “If you live long, you will see a lone woman travelling in her howdah from al-Hirah until she performs the tawaf at the Kaʿbah, fearing none but God” ʿAdiy said: “I have certainly seen lone women travelling from al-Hirah until they performed tawaf at the Kaʿbah fearing no one other than God” [Related by al-Bukhari]
Scholars give several views on this question, particularly with regard to the woman's travel for pilgrimage. The Maliki school is of the view that the maḥram is obligatory, but safe companionship is acceptable as a substitute if the woman is travelling for her obligatory pilgrimage. Safe companionship may be composed of women only, or men only, or a group of men and women.2
Some Shafiʿi scholars stipulate that pilgrimage is not an incumbent duty on a woman unless she has full security provided by the maḥram or a group of reliable women. Others say that one other reliable woman is sufficient. If security is widespread, a woman may not need anyone, and can travel alone with a caravan, feeling fully secure.3
The Zahiriyyah Sunni school of Fiqh, which takes every text at face value, says that the presence of the maḥram is obligatory in every travel. However, it maintains that the pilgrimage is excepted because the presence of the maḥram is not part of a woman's ability to do the pilgrimage.4 Likewise, the Ḥanafi school of Fiqh makes it necessary for a woman to be accompanied by a maḥram on her pilgrimage. They consider her travel without one as exposing her to harm.5 The Zaydiyyah, which is a Shiʿa school of Fiqh, takes the view that it is necessary, but not obligatory, for a woman to be accompanied by a maḥram on her pilgrimage, except in the case of an old woman who can travel with a company of women.6 The Imamiyyah Shiʿa school says that what is important is to ensure security, so that the woman is certainly safe. If this is assured, then a maḥram is not necessary7.
Thus we see that the majority of scholars, particularly the Prophet's companions, consider the woman's security and her protection against possible danger as the criterion for making the presence of a maḥram necessary or not. They gave such views at a time when most travel took many days on camel back and across deserts. One can only wonder what they would have said about travel by planes and trains. The Ḥadith reported by ʿAdiy ibn Ḥatim, which has already been quoted, and the practical example of the Prophet's companions open the door for our scholars who strictly insist on the maḥram in all women's travel — either through personal ijtihad or through following earlier scholars — to change their views.
3. Women as witnesses before the law
The Qurʿanic verse outlining the rules that apply to borrowing and lending money require that the debt agreement should be written down. It also provides for witnesses to be present: “Call in two of your men to act as witnesses, but if two men are not available, then a man and two women, whom you consider acceptable as witnesses, so that if either of them [i. e. the two women] should make a mistake, the other will remind her” (Q 2: 282) Scholars agree that the writing down of the agreement and the presence of two men or one man and two women as witnesses are not essential conditions for the agreement to be made and to consider it valid and binding. The need for witnesses in such cases is to provide a proof of the agreement, not to bring it into existence. Nevertheless, the above-quoted provisions have become, by analogy, the basic rule on the question of witnesses. This rule requires a minimum of one male witness. If there are only four female witnesses, they are not considered as sufficient. Moreover, a woman witness must have another woman alongside her, so as to remind her in case she has forgotten some details. It is clear that these provisions are meant to establish the facts beyond doubt. At the time of the Islamic revelations, women rarely worked in business. Hence, it was necessary for the judge to take precautions as he went about establishing the facts of the case in hand. Hence, the requirement that a female witness should be accompanied by another who would remind and correct her, should she make a mistake.
As already mentioned, there are two trends among Islamic scholars, the first tends to take texts of the Qurʾan and the ḥadith literally, without looking at the purpose behind any legislation, or the interests it is meant to serve. Foremost among the proponents of this trend is the Zahiriyyah school. The other trend looks beyond the literal meaning of the texts in order to identify its aims and objectives. Thus, the ruling laid down in a statement or a text is closely linked to its objective and the Purpose it is meant to achieve. The first major figure to lead this trend was the second Caliph, ʿUmar ibn al-Khattab. A number of scholars among the Prophet's companions and the generation that succeeded them, i. e. the Tabiʿin, followed his footsteps until the Maliki school of Fiqh, founded by Imam Malik ibn Anas, upheld this trend.
Imam al-Shatibi made a lasting contribution as he laid down the legal foundations of this trend, devoting the second volume of his priceless book, Al-Muwafaqat, to this purpose. A number of contemporary scholars have led an active scholarly movement in promoting this trend.
ʿUmar ibn al-Khattab was the first to deal with witnesses' testimony as a means to establish facts. Taking this to be the purpose behind the relevant provision stated in the Qurʾanic verse dealing with debt agreements, ʿUmar ruled that female witnesses are acceptable on their own8. He further ruled that women's testimony takes precedence over that of men in matters that are mainly of women's such as menstruation, pregnancy, postnatal affairs and breast-feeding. Abū Ḥanifah leads a long line of prominent scholars who have followed ʿUmar in this respect9.
We need to look carefully at the rulings issued by ʿUmar, the second Caliph, which appear at first sight to be contrary to a clear Qurʾanic statement, such as his order to stop paying zakat to the category of people known as 'those whose hearts are to be won over to the side of Islam10'. ʿUmar certainly did not wish to abrogate a clear and valid statement — far be it from him to even contemplate that. He was in fact looking at the purpose and objective of that statement and the purpose that the provision it contains aims to achieve.
Had ʿUmar ibn al-Khattab been living among us today, and had he seen that some of our women have postgraduate degrees in law, economics, business management and similar specialities, in addition to managing successful companies or heading whole departments in banks and financial institutions, would he have given precedence to a half-educated man as a witness over such a woman? Would he have been satisfied, I wonder, with the testimony of two competent women experts to establish the facts, which is, after all the purpose of the relevant legislation? The last question on this point: will some of our contemporary scholars rise up in arms if a competent scholar tries to emulate ʿUmar, the Prophet's second successor, in his approach, saying that many of our contemporary women experts are unlikely to forget or make errors when giving testimony and, as such, they do not need other women to remind them?
In a detailed interview, Dr Muḥammad Saleem al-ʿAwa mentions the practical implementation of the provision requiring two women witnesses in place of one man. The fact, according to him, is that the statement attributed to the Prophet describing a woman's testimony as half that of a man's is meant figuratively. The procedure traditionally followed in Islamic courts throughout the history of Islamic law is that when two female witnesses enter, the judge asks them which of them is the witness and which is the one to remind her. Each of them states her role. The judge then orders the witness to take the stand of witnesses and orders the other woman to stand behind her in a position where she is seen by the judge but not by the female witness. He further asks the woman acting as a reminder to give him a signal with her hand if she wants to say something. The judge then listens to the testimony of the female witness in fun. If the other woman has given him a signal, he then asks her to say what she has to say. Should he find it to affect the substance of the testimony, he orders that it be included in the record of the court's session. He then asks the witness if she accepts it as correct. If she approves it and the two women agree, there is no problem. If they differ and the witness insists that her version is correct, the judge will decide between the two and adopt what he determines to be correct. This means that we have actually one woman witness whose testimony might stand as it is, with the reminding witness having nothing to say, or else she might remind the other woman of certain things and they agree on the facts.
Dr Al-ʿAwa explains that the female witness has a privilege over the man acting as a witness. This privilege is the fact that she can bring someone to remind her of any facts she may overlook. Then the court accepts what the two women agree and it becomes the basis of decision in the case being heard. A male witness who forgets certain facts does not have such a privilege. His testimony is rejected.
Islamic law, according to Al-ʿAwa, has given the woman witness this privilege and determined its application. The Qurʾanic text is concerned with a pre-prepared testimony that relates to rights proven by documents, not with testimony regarding events. The latter type is proven by the testimony of people who were present at the time and place of the event.
Thus, scholars made the ruling on testimony concerning people's actions also applicable to testimony on events. They have actually exercised their scholarly discretion, or ijtihad, in a way that gives women a privilege that man does not enjoy. It does not downgrade women's legal or social position in any way.
On this point Imam Ibn Taimiyah is quoted as saying: “The Qur͗an does not mention the two witnesses or the man and two women witnesses as evidence to prove a case. These two methods of proof are mentioned as a means to protect one's rights. What proves one's right is completely different from a ruling given by a judge. The means to arrive at such a ruling are much wider than the testimony of a specific number of witnesses.11 “
This was published in:
Woman in Islam_ English version, 2005, Al-Furqan Islamic Heritage Foundation, London, UK, p 115-130.
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