International Journal of Law, Policy and the Family
A husband's authority: emerging formulations in Muslim family laws Lynn Welchman Subject: Family law. Other related subjects: Legal systems Keywords: Comparative law; Islamic law; Marriage; Morocco; Spouses; United Arab Emirates
*Int. J.L.P.F. 1 ABSTRACT
This article considers the articulation of the husband-wife relationship in Islamic law and specifically the contemporary equation in statutory formulations of Muslim family law that sets the husband's duty of support, or maintenance, of his wife, as the exchange for the wife's obedience to her husband. This formulation is currently challenged not only in activism but also increasingly in legislation in Muslim majority states. I begin with a consideration of some of the contestations in English-language scholarship of the ‘meanings’ of ‘Islamic law’ and its relationship particularly to women in the family. I then look at the paradigm of the husband's authority (qiwama ) over his wife in jurisprudence and pre-modern practice, moving from there to the maintenance-obedience equation in Arab state family law codifications. I end with a comparison of the way in which Morocco and the United Arab Emirates deal with this issue in their recent family law codifications, reflecting that the formulations emerging in the two states are positioned at either end of the current spectrum of Muslim family laws in Arab states.
In 2009, a 12-strong ‘planning committee’ of Muslim academics and activists from 11 different countries launched, in Kuala Lumpur, a ‘global movement for equality and justice in the Muslim family’ with the following statement: We hold the principles of Islam to be a source of justice, equality, fairness and dignity for all human beings. We declare that equality and justice are necessary and possible in family law and practice in Muslim countries and communities.1 The website heading adds: ‘The time for realising these values is now’. The movement, facilitated by the Malaysian women's rights non-governmental organisation (NGO) Sisters in Islam, is called Musawah (‘equality’ in Arabic) and argues - broadly - that contemporary Muslim family laws fail to realise the Quranic requirement of justice, with its contemporary *Int. J.L.P.F. 2 inclusion of gender equality as a critical component and that these laws also fail to reflect the ‘lived realities’ of Muslim families across the globe. The Musawah movement builds partially on the promulgation of Morocco's new family law of 2004. This law followed lengthy build-up and significant polarisation in the public debate and was drafted by a commission appointed and instructed by the King; but it was debated and passed by the legislature, unlike previous family law legislation in the country. The 2004 law widened women's rights and responsibilities, included internal references to Morocco's commitments under international law in the family, and received favourable coverage internationally. Earlier recommendations made in the context of a National Development Plan had not been successfully passed through parliament, and some attribute the relatively smooth parliamentary (and, in the end, public) passage of the new law not only to the hands-on role of the King but also to the relative absence from the public sphere, at that time, of dissident Islamist mobilisation in the wake of widespread arrests after the 2003 Casablanca bombings. Zakia Salime hails the 2004 law as the ‘outcome of two decades of struggle by the feminist movement’ and ‘the most significant gain women have made since independence’, while observing that ‘[g]ender was central to the repositioning of the Moroccan state’ in the aftermath of the bombings.2 The following year, the United Arab Emirates (UAE) issued its first Muslim family law codification, drawn up by a committee of nine male scholars established by a 2002 Decision of the Minister of Justice, Islamic Affairs and Waqf....