It appeared quite futile to locate the Afghan Shia family law and the UN report which reported that the family law ‘legalises rape'. The law is kept under wraps and the Unifem report is not up on its main portal.

The media coverage has had a chilling effect. A Ministry of Justice spokesman said that the law is under review and has not been published in the official registry.

From media reports, the offending provisions in the Shia family law say a husband can have sex with his wife every four days unless she is ill. It regulates when and for what reasons a wife may leave the house by herself. These were quoted in several media reports as ‘the most controversial'.

These provisions in the Shia law could well be part of the Sunni body of legal formulations as well. The once-in-four-days sex proposal is a known opinion of scholar Al-Ghazali in his work ‘On the Etiquette of Marriage' (Chapter 12 of the Ihya Ulum al-Din).

Sharia courses in Malaysian and Indonesian institutions of higher learning and ‘pesantren' (religious schools) in the latter would note this work as a reference. According to Internet sources, this work is the most widely read after the Qur'an.

Pakistan imposes syariah law woman in purdah Imam Ghazali's opinion on the frequency of sex with one's spouse is not a legal ruling and is not lifted into the text of Islamic family law in Southeast Asia.

This ‘authoritative work' nevertheless informs policy makers, sharia lawyers and sharia judges in Singapore, ‘Muslim Mindanao' in the Philippines, the provinces in South Thailand, and the Sultanate of Brunei where Islamic family law is applied.

Rule of etiquette

The relevant text in its English translation reads: ‘The husband should go to his wife once in every four nights. This is fairest, because the [maximum permissible] number of wives is four. One is therefore allowed to extend the interval up to this limit.

‘It is best that the husband should increase or decrease the number of times of intercourse in accordance with his wife's need to guard her virtue, since the preservation of her virtue is the duty of the husband.

f the woman's claim on intercourse has not been fixed, this is because of the difficulty of making and satisfying such a claim.'

This once-in-four-days ‘advice' is a rule of etiquette. Reading part of the text and reading the whole text/context will convey different meanings to the reader. It is not useful at this point to speculate on the text of the Shia family law (as it is not available for scrutiny) or how the law in its entirety had been read and interpreted.

However, every law student will know that a meaning of a single legal provision can be gleaned by looking at the statute as a whole. For instance, I would check if violence would constitute a grounds of divorce for women.

It is in the Islamic family law in Southeast Asia, either under ‘fasakh' (court-ordered dissolution) or under a conditional divorce (ta'liq). There is reformation in the nineteenth century codification efforts of Islamic family law in most Muslim majority countries.

Both Malaysia and Indonesia, for example, have specific domestic violence legislation which is applicable across the board, regardless of religion.

In Malaysia, individual states may have incorporated an injunction against molestation in its Islamic family law. This predates its Domestic Violence Act.

Marital rape not a concept then

At the time Imam Ghazali (1058-1111 AD) formulated his book on the etiquette of marriage, consent and bodily integrity were not part of the conceptual framework in developing advice or legal rulings (fiqh) on male-female relations.

Gender was not a category of thought in pre-modern methodology. Thus marital rape is not a concept in pre-modern ‘fiqh'.

It is something reformers and exegetes are working on for legal recognition through a reconstruction of the methodology of interpretation (‘usul al-fiqh') of the sources of Islamic law.

In the meanwhile, violence should be criminalised in the family law and be a grounds upon which divorce should be granted.

It might be emphasised that we are looking at a ‘de jure' situation. This means legislation and policies.

De facto change is another matter. De facto change requires more than just law. I know, for example, that the State Islamic University, Sunan Kalijaga in the Indonesian city of Yogjakarta has been running gender courses for Indonesian sharia judges for some 10 years now.

The curriculum includes a course on violence against women, including marital rape.

The gender training for sharia judges is managed by the Women Studies Centre (WSC) of the university. The WSC has a woman director, Siti Ruhaini. I think Malaysia under BN has lost the plot here.

Incremental change

At this point, it might also be instructive to raise a comparative note to the law on marital rape, let's say in the UK. Marital rape as a concept was recognised by the courts only in 1991 in the case of R v R, a House of Lords decision reported in volume 1 of the 1991 All England Law Reports at page 759.

The much awaited decision in R v R, ruled that a wife cannot be deemed at law to have consented irrevocably to sexual intercourse. This comparative lesson will help us understand that change anywhere, in the East as in the West, is incremental.

A ‘culturally authentic' response for Muslims is not a cut and paste job from this English decision nor the making up of rules ‘as we go along'. Reformers have to contend with the use, authority and interpretation of different sources of knowledge, and who can represent, express and direct the authority of sources. \

pakistan terror school 071204 girls at lahore art school Authority is a conversation about sources and about the moral, social authority that the internal discourse (the intra-faith dialogue) represents.

Pre-modern ‘usul al-fiqh' or the methodology of deriving legal principles from sources of law was developed in the span of several hundred years after the death of the Prophet, coinciding with the deaths of the master jurists, Hanafi, Malik, Shafii and Hanbal.

This is the historical and legal minefield for contemporary reformers working with Islam and Muslim societies. Can there be an integrative approach of ‘Western legal tradition' and the Islamic legal tradition? That idea is still moot as there are concerns about the ability to incorporate different historical experiences and conceptions of law.

On a final note, conference participants to a regional meeting held in Jakarta in March this year, related to gender equality in Muslim societies, proposed the criminalising of marital rape in Islamic law.

As fiqh principles change or are transformed by new understandings of gender equality and justice in Islam, laws can be repealed and amended.

Suggested reading:

Kecia Ali. 2006. Sexual Ethics and Islam: Feminist Reflections on Qur'an, Hadith and Jurisprudence. One World Publications

What’s new on the Eastern front? (Pt 1)