Domestic Violence and Shariah

8/12/2019 Domestic Violence and Shariah

1/41

Domestic Violence and Sharia:

A Comparative Study of Muslim Societies in theMiddle East, Africa and Asia

By Lisa Hajjar

1.ntroduction

On March 12, 2000, some 300,000 demonstrators took to the streets ofRabat, Morocco, expressing their support for a new law expanding womens rightto diorce! "imultaneousl#, a comparable number of demonstrators took to thestreets of the nearb# cit# of $asablanca to protest the law as a deiation from

sharia %&slamic law'! (hile diorce is a permissible and established option in&slam, in man# Muslim societies it tends to be treated as a male prerogatie)women can easil# be divorced, but notseek divorce!1*he new Moroccan lawaimed to lessen this gender imbalance,2sparking the competing demonstrationsthat, together, offered anecdotal eidence of sharpl# diergent iews on Muslimwomens rights!

Opponents of the new law framed their position as a defense of religionand the famil#, claiming that the law conflicts with womens duties to theirhusbands, and contraenes theirsharia+based status as legal minors! "upportersheralded the new law as an adance for women, not %necessaril#' a repudiation of

sharia! *hose who had been working for #ears to bring such a law into being had

sought to alter womens status as perennial subordinates in the context of thefamil#! &ndeed, the laws significance, recognied b# opponents and supportersalike, was its potential for eroding masculine priilege, albeit slightl#, b#enhancing womens options to end a marriage!

1

&n 1-./, two #ears after Morocco gained its independence from rance, the stateestablished a $ode of ersonal "tatus %Mudawwana al-Ahwal al-Shakhsiyah', which reiterated andcodified the %Maleki' tradition of famil# law urisprudence! mong the proisions of this code wasthe husbands right to dissole the marriage at will b# means of talaq %repudiation', stating, 4&diorce thee5 three times, although the code instituted the re6uirement of two witnesses to

authenticate the diorce! &f the husband chose to diorce his wife, she had no legal recourse, whileher right to diorce was restricted and subect to confirmation b# ashariacourt!2*he background to this new law includes prodigious adocac# efforts b# womens

rights actiists, and the political transition on the death of 7ing 8assan &&, who was succeeded b#his son, Muhammad! Morocco has a ibrant womens rights moement, although there are somenotable differences in the interests and goals that arious sectors pursue) some hae taken the

position that womens rights can be assured and protected onl# through the replacement of theMudawwana with a secular code enshrining liberal alues, including the enforcement of thee6ualit# proisions of Moroccos constitution! Others hae sought to expand womens rightsthrough the reform of &slamic urisprudence, and to these ends the countr# has been a center ofsome extremel# innoatie efforts to reinterpret 9uranic erses and hadithin a manner that wouldenhance the rights and e6ualit# of women! s a result of actiism in the earl# 1--0s, some modestreforms of the Mudawwana were instituted in 1--3! :ut the accession to the throne b#

Muhammad, who, b# man# accounts is committed to bolder legal reforms, set the stage for thepromulgation of the new law!


2/41

&n Morocco, as elsewhere, one of the most common reasons women wouldseek to end a marriage is to extricate themseles from a harmful situation! *his

illuminates the connection between the right to diorce and female ulnerabilit#to domestic iolence!3;omestic iolence can be defined as 4iolence that occurswithin the priate sphere, generall# between indiiduals who are related throughintimac#, blood or law nearl# alwa#s a gender+specific crime, perpetrated

b# men against women!5?One of the strongest predictors of iolence againstwomen is the restriction on womens abilit# to leae the famil# setting!.:ut, asmost womens rights actiists would concede, diorce does not constitute anade6uate form of protection, or een an option for man# women! M#riad factorsdiscourage, impede or preent women from leaing a iolent relationship,including a lack of resources or support to establish alternatie domesticarrangements, and powerful social expectations and pressures to maintain famil#

relations at an# cost!&n this stud#, the central 6uestion concerns the relationship between

domestic iolence andsharia! *his relationship is of critical importance becauseshariaproides both the legal framework for administering famil# relations and areligio+cultural framework for social norms and alues in Muslim societies .s theexample of demonstrations oer the Moroccan diorce law illustrates, there arestrong interconnections among gender relations, religion and law! *he examplealso illustrates the challenges to pursuing legal reforms to enhance womensrights, and the abilit#@indeed, the likelihood@that constituencies with differentinterests and perspecties will mobilie and compete for state support!

*his stud# seeks to proide an anal#tical framework and a comparatieassessment of domestic iolence in Muslim societies in the Middle Aast, fricaand sia! *he approach is socio+legal, probing the functions and uses of religiousand other bodies of law, and tracing struggles oer the rights of women in thecontext of domestic relations! Bien the importance and attention deoted to therelationship between womens rights and &slam, to date surprisingl# littlecomparatie anal#sis has been generated about the relationship between domesticiolence andsharia! *his stud# is an effort to redress this lacuna!

3

*he Moroccan $ode of ersonal "tatus has sered to foster conditions in whichdomestic iolence is tolerated! or example, while the $ode does allow for the possibilit# ofdiorce on the grounds of 4general harm,5 rules of eidence that would enable women to proesuch harm are extremel# difficult to fulfill! Moreoer,shariacourt udges tend to be skeptical ofsuch charges and inclined to adocate reconciliation of the couple rather than prioritie relief forthe wife!

?Radhika $oomarswam# %CD "pecial Rapporteur on Eiolence against (omen', 4urtherromotion and Ancouragement of 8uman Rights and undamental reedoms


3/41

!."ender #n$E%uality, &omens 'i(hts, and the )ro*lem of Domestic Violence

&ne6ualities between men and women are common the world oer, albeit

the forms and conditions ar# and change! &t is a nearl# uniersal truism thatgender mattersin wa#s that make and keep women relatiel# less free, lessindependent, less empowered, less financiall# and ph#sicall# secure than men!

*he arena where gender ine6ualities are most entrenched, in the context offamil# relations, is also where the# are most widel# accepted and thus mostdifficult to alter! "exual and other ph#sical differences between men and womenlend themseles to understandings of social ine6ualities as both deriatie of andconforming to 4nature,5 especiall# in terms of famil# roles and relations! "uchunderstandings preail in man# cultures! :ut the challenges of contesting andaltering ine6ualities are compounded in societies where gender and famil#relations are goerned b# religious laws, because the resultant hierarchies can be

defended as diinel# sanctioned!;ebates oer the legitimac# of gender e6ualit# hae been especiall#

igorous in Muslim societies, and displa# some common patterns related tosharia!F*he 9uran, which belieers accept as the literal word of Bod and thuseternall# applicable, contains man# erses that would seem inescapabl#discriminator# toward women! "o, too, do man# of the hadith%sa#ings b# andstories about the rophet Muhammad'! Ket there are also man# 9uranic ersesand hadithestablishing the e6ualit# of men and women! *hese seemingcontradictions lend themseles to multiple readings, claims and counter+claimsabout what &slam prescribes for women!H

lthough the use ofshariato administer famil# relations/contributes tocertain commonalities in gender relations across Muslim societies, notabl# the

priileging and empowerment of men oer women within the context of thefamil#, it is important to note significant ariations as well! *he state is the mostimportant ariable for understanding ariations across societies, since, in themodern era, the state is the primar# arbiter of law! "tate power is deplo#ed toregulate gender and famil# relations, as well as the role of religion in societ#!cross the three regions that are the focus of this stud#, the histor# and politics ofthe state@that is, the specific experiences and legacies of colonial rule, and thetraectories of national independence, integration and deelopment@hae gien

F

Sharia encompasses the ordinances deried from the 9uran and hadith, and an# otherlaws that are deduced from these two sources b# methods considered alid in &slamic

urisprudence %!iqh'! *he two main methods are i"ma %consensus among Muslim urists' andi"tihad%interpretation based on accepted rules of logic and religious texts'!

H *he literature on women and &slam is ast! "ee sghar li Angineer, #he $i%hts o!&omen in 'slam%DKI "t! Martins ress, 1--2') $amilla awi Al+"olh and Lud# Mabro, eds!,

Muslim &omens Choices( $eli%ious )elie! and Social $eality %Oxford, C7I :erg ublishers,1--?') atima Mernissi, #he Veil and the Male *lite( A +eminist 'nterretation o! &omens $i%htsin 'slam%Reading, MI ddison+(esle# ublishing $o!, 1--1') 8aideh Moghissi,+eminism and

'slamic +undamentalism( #he ,imits o! Postmodern Analysis%JondonI ed :ooks, 1---') MaiKamani, ed!, +eminism and 'slam( ,e%al and ,iterary Persectives %Dew KorkI Dew KorkCniersit# ress, 1--F'!

/

*hese famil# relations, also known as 4personal status5 issues, include marriage,diorce, custod#, and inheritance!


4/41

rise to astl# different state proects and agendas in regard to gender relations, lawand religion, and the relationship among them!

"tate formation affects the position of women in societ# in seeral wa#s!&n particular, the state mediates gender relations through the law


5/41

docates of the criminal ustice approach point to the s#mbolic power ofthe law and argue that arrest, prosecution and coniction, with punishment,

is a process that carries the clear condemnation of societ# for the conductof the abuser and acknowledges his personal responsibilit# for theactiit#


6/41

second factor is the relationship between religious law and state power.or comparatie purposes, this relationship can be diided into three general

categories %which are elaborated in greater detail below'I &n some countries, thestate 4communalies5 religion b# according its authorities and institutions semi+autonom# from the national legal regime, the latter under the direct control of thestate! &n other countries, the state 4nationalies5 religious law b# utiliing andincorporating its principles into the national legal regime! nd in a few countries,the state 4theocraties5 religion b# basing its own authorit# on religious law andfunctioning as its enforcer!

third factor to consider in assessing the relationship between domesticiolence andshariais the influence of trans+national discourses and moements .*wo in particular are worth noting because of their releance to the subect of thisstud#I &slamiation and human rights! "ince the 1-H0s, &slamist moements hae

mobilied in man# countries across the Middle Aast, frica and sia to demand a%re'turn to &slam through the establishment of a s#stem of goernment thatadheres to and enforcessharia.1.&n some countries, &slamists represent anopposition moement, in others the# represent an influential constituenc#, and ina few the# hae assumed control of the state! 8oweer, regardless of therelationship between &slamist moements and regimes, there is a generall# sharedcommitment to the preseration of patriarchal famil# relations! &ndeed, een incontexts where &slamists constitute a hostile opposition, states often are willing toaccommodate their demands on matters of gender and famil# relations as a meansof placating them!1F

"ince the 1-H0s, there has also been a mobiliation of moements topromote international human rights! 8uman rights organiations hae beenestablished in most countries, leading to greater awareness of the discourse and

principles of international law, and, conse6uentl#, more isibilit# and criti6ue ofiolations! *he kinds of actiities that comprise this trend include monitoring andreporting on rights iolations, networking with actiists from other countries andregions, and adocating that goernments adopt, adhere to and enforceinternational legal standards locall#!1H

*he issues of womens rights within the famil# and the role ofshariahae been central concerns to both of these moements, albeit in oftencontradictor# and een adersarial wa#s! *he critical@and debatable@6uestion is

whether &slam and human rights offer compatible worldiews, and if not, whichshould preail! *his is not an abstract philosophical matter) it is a deepl# chargedpolitical concern that informs the strategies that local actors pursue to institute

such as threats of abandonment, diorce or abuse) confinement and sureillance) threats to takeawa# custod# of children) erbal aggression and humiliation!

1. "ee Loe "tork and Loel :einin, eds!, Political 'slam%:erkele#I Cniersit# of $aliforniaress, 1--H'!

1F "ee red 8allida# and 8ama lai, eds!, State and 'deolo%y in the Middle *ast andPakistan%JondonI Macmillan, 1-//') ;eni 7andi#oti, 4:argaining with atriarch#,5 1ender 2Society, ol! 2, no! 3 %1-//'!

1Hor information about DBO actiities and initiaties in the rab world, see mal

bdel 8adi and Dawla ;arwiche, Strate%ies to +i%ht Domestic Violence a%ainst &omen in theArab Countries%DKI CD ;iision on the dancement of (omen, draft, n!d!'!


7/41

their isions and goals, whether their priorit# is to promote womens rights inaccordance with international law, to promote an 4authenticall# &slamic5 social

order %howeer that is interpreted', or to reconcile religious laws and beliefs withwomens rights!1/

/.Aims and Methods of 0his Study

*his thematic stud# on the relationship between domestic iolence andshariais part of a larger proect on &slamic famil# law! 1-*his stud# was designedwith three main aimsI 1' to map the problem of domestic iolence in Muslimsocieties in the Middle Aast, sub+"aharan frica and sia) 2' to anal#e andcompare how states deal with this problem) and 3' to anal#e and compareariations in interpretations and applications ofshariain regard to intra+famil#iolence!

;omestic iolence is an extremel# difficult subect to stud# because of thedearth of reliable information! *his is the case not onl# in Muslim societies butirtuall# eer#where! *he reasons for this includeI the inabilit# or disinclinationof ictims to report iolence) refusal or failure of authorities to document reportsandGor make reports publicl# aailable) and official andGor social acceptance ofcertain forms and degrees of intra+famil# iolence! 8ence, the 6ualit# andaailabilit# of information about domestic iolence aries, from non+existent to

partial at best!&n the societies that are the focus of this stud#, estimated rates of domestic

iolence tend to be high! 8oweer, the aailable information is extremel# limitedand uneen! Ag#pt and alestine are the onl# countries in the three regions forwhich national studies that focus on or include domestic iolence hae beenundertaken!20or some countries, there is irtuall# no statistical informationwhatsoeer! Most information about domestic iolence that does exist comes fromlocal and international organiations, including womens and human rightsorganiations, and certain bodies of the Cnited Dations with mandates that focuson or include womens rights!21*he lack and uneenness of information is animportant finding in its own right! :ut clearl#, it makes the first aim of mappingdomestic iolence in Muslim societies all but impossible!

1/

"ee Mahna fkhami and 8aleh Eaeri, Claimin% 3ur $i%hts( A Manual !or &omens0uman $i%hts *ducation in Muslim Societies %:ethesda, M;I "isterhood &s Blobal &nstitute,1--F'!

1- "ee www!law!emor#!eduG&J20 atma Al+anat# et al!, *%yt Demo%rahic and 0ealth Survey 4556%$airoI Dational

opulation $ouncil, 1--.') M!M! Kahia, 4*he &ncidence of (ife buse and :attering and "ome"ociodemographic $orrelates as Reealed in *wo Dational "ure#s in alestinian "ociet#5%Ramallah, alestinian uthorit#I :esan $enter for Research and ;eelopment, 1--/'!21

*he research for this stud# draws upon secondar# sources, including reports and studiesb# organiations, research institutions and scholars who work on domestic iolence! *hreeresearchers, each working on a specific region %:ashar *arabieh for the Middle Aast, Dgone *ine

for sub+"aharan frica, and att# Bossman for sia', hae sure#ed the existing resources, andtheir research is incorporated in this stud#!


8/41

&n regard to the second aim of anal#ing and comparing how states dealwith domestic iolence, the two most important issues are the administration and

laws goerning gender and famil# relations, and official commitment %or lackthereof' to womens rights! *he kinds of 6uestions that this research raises includethe followingI 8as the state signed and ratified the $onention to Aliminate llorms of ;iscrimination against (omen %$A;('N &f so, has it registered an#reserations on the grounds that $A;( conflicts withshariaN &s there aconstitutional authorit# guaranteeing e6ual protection of law for women, and if so,is this authorit# used effectiel# to prohibit and punish domestic iolenceN &s therenational legislation andGor administratie sanctions prohibiting domestic iolenceN(hat measures, if an#, has the state taken or authoried to deal with domesticiolence and the protection of ictims %e!g!, proision of social serices and healthcare, education campaigns'N "ome information about the role and actiities of the

state, such as ratification and reserations to $A;(, is publicl# aailable! :utinformation about the laws, policies and urisprudence pertaining to domesticiolence is far more difficult to gather! *he best sources tend to be organiationsthat work on womens rights issues, and these ar# from countr# to countr#!

&n regard to the third aim of anal#ing and comparing interpretations andapplications ofshariaas it impacts upon the issue of intra+famil# iolence, thisstud# makes no claim to proide an authoritatie opinion on what &slam 4reall#5mandates! Rather, the issue is what authorities and members of societ# belieeand accept, and how these beliefs are shaped, debated and transformed! ;espiteariations across societies, there are some commonalities, not least a generaltendenc# to interpretshariaas sanctioning gender ine6ualit# in famil# relations!"pecificall#,shariatends to be interpreted to gie men power oer womenfamil# members! *hus, gender ine6ualit# is acknowledged, and ustified inreligious terms on the grounds that Bod made men and women 4essentiall#different5) that these differences contribute to different familial roles, rights andduties, which are complimentar#) and that this complimentarit# is crucial to thecohesion and stabilit# of the famil# and societ#!

;omestic iolence is strongl#@and directl#@related to ine6ualit#between men and women! :ut the contested legitimac# of gender e6ualit# inMuslim societies impedes or complicates efforts to deal with domestic iolence asa social problem! *here is strong opposition to the notion that men and women

should be equalin the context of the famil#! *he corollar# is the belief thatdomestic relationships are legitimatel# %i!e!, 4naturall#5 andGor 4diinel#5'hierarchical! *his belief is both deried from and reinforced b#sharia! 8oweer,for anal#tical purposes, this stud# 4brackets5 the 6uestion of whethersharialends itself to or opposes formal e6ualit# for men and women in order toforeground the issue of iolence! "pecificall#, the 6uestion addressed here iswhethershariais interpreted to construe iolence against women as a harmor ari%ht!

s a point of clarification, the 4bracketing5 of gender ine6ualit#distinguishes the approach of this stud# from most mainstream feminist andhuman rights discourse, which tend to see and treat ine6ualit# as causalfor


9/41

domestic iolence!22*his inclines feminists and human rights actiists to regardthe struggle for gender e6ualit# as the meansof combating domestic iolence!23

*his is premised on the idea that if women were e6ual to men and had e6ualprotection under the law, men would not be able to get awa# with perpetratingiolence against them! (hile this is a alid assumption, it either fails to engagewith or delegitimies the beliefs and ideologies %in this case religious and cultural'that proide"usti!icationfor ine6ualities!

&ndeed, gender ine6ualit# and domestic iolence areintegrall# related, andthis understanding informs the anal#sis here! :ut in this stud#, the primar#emphasis is on violence, and the social and cultural context in which it occurs!*his relates domestic iolence to a lack of rights for women in order to probe therationales and ustifications for that lack!

;efining iolence in this wa# allows us to address the record of iolence

against women as one not composed of a series of instances of abuse


10/41

that domestic iolence is a problem that demands recourse, and that such recourseis not inimical to &slam!

&t is the hope of those inoled in this stud#, and in the larger &slamicamil# Jaw proect of which it is a part, that this research will proide a resourcefor action and adocac# to combat the problem of domestic iolence, and toenhance legal and other remedies aailable to ictims! lthough the problem ofdomestic iolence and efforts to deter and combat it are global in scope, an#

possibilit# for success must inole strategies and anal#ses that resonate withcultural and religious norms and alues!

*he remainder of this stud# is organied as followsI *he next section la#sout a framework for anal#ing domestic iolence as a legal and a social problem!*he following section focuses on domestic iolence andshariain general termsof the scriptural and interpretie stances that inform their relationship! *he third,

fourth and fifth sections focus, respectiel#, on efforts to establish an internationallegal framework for combating domestic iolence within a larger campaign forwomens rights, culturalist resistances to womens rights, and manifestations ofsuch resistance within Muslim societies that utilie adherence toshariaas their

basis! *he final substantie section presents a comparatie anal#sis of domesticiolence in Muslim societies, highlighting ariations in the relationship betweenreligion and the state as it impacts upon the issue of intra+famil# iolence!

.0he )ro*lem of Domestic Violence

;omestic iolence is a global phenomenon, and the seriousness of thisproblem cannot be oerstated.ccording to feminist geographer Loni "eager, it isreported as 4common5 in almost all countries!2F&t affects millions of womenannuall#! ccording to 8uman Rights (atch, it 4has been one of the principalcauses of female inur# in almost eer# countr# in the world!52H

:ut domestic iolence is also a hidden problem! or man# countries, thereis little or no statistical information, indicating that it is 4a crime that is under+recorded and under+reported!52/or countries where data is aailable, the ratesar#!2-or example, in the Cnited "tates, an estimated 2/ percent of women hae

been ictims of domestic iolence at least once in their lies! &n "outh frica, theestimate is ?/ percent! &n akistan, estimates range from /0 to -0 percent!30

*he prealence of domestic iolence is a powerful indication of the

ine6ualit# and ulnerabilit# of women across cultures! ;omestic iolence is the

2F Loni "eager, #he State o! &omen in the &orld Atlas%JondonI enguin :ooks, 1--H',pp! 2F+2H! *he few countries where domestic iolence is not reported as 4common5 include $ote;&oire, ;ibouti, Jaos, Madagascar and the Maldies!

2H0uman $i%hts &atch &orld $eort 4557%Dew Kork', p! 3-2!2/ CD&$A, Domestic Violence a%ainst &omen and 1irls %lorence, &tal#I &nnocenti

Research $enter, 2000', p! ?!2- 4Research on domestic iolence is fairl# new, and has been undertaken perhaps onl# in

the last 2. #ears


11/41

most common form of gender iolence, the latter encompassing all forms ofiolent practices perpetrated on females because they are !emales!

(hether gender iolence operates as direct ph#sical iolence, threat, orintimidation, the intent is to perpetuate and promote hierarchical genderrelations! &t is manifested in seeral forms, all sering the same endI the

preseration of male control oer resources and power!31

(hat distinguishes domestic iolence from other forms of gender iolence

is the context within which it occurs %the 4domestic5 or 4priate5 sphere' and thenature of the relationship between perpetrators and ictims %familial'! :ecausedomestic iolence occurs within the 4priate5 sphere of the famil#, making itisible %as a first step to making it redressable' is exceedingl# difficult! &t is theer# 4intimac#5 of domestic space and relationships that makes such iolence

difficult to stud# and document! nd it is the importance of the famil# in eer#societ# that makes the formulation of effectie strategies to protect women fromabuse so controersial!

&n the case of intimate iolence, male supremac#, ideolog# andconditions


12/41

preailing social beliefs about famil# relations include the idea that men hae aright or obligation to 4punish5 and 4discipline5 women famil# members, then the

tactics used to do so can be seen@and een lauded@as necessar# to maintainorder both at home and in societ# at large! &f, howeer, the safet# and rights ofwomen are@or can become@the priorit#, then the use of iolence against themcan be seen and criticied as illegitimate!

&n contexts where intra+famil# iolence is not explicitl# prohibited b# law%i!e!, criminalied', perpetrators eno# le%al imunity.&n contexts where it is

prohibited but the laws are not enforced, perpetrators eno#social imunity! &neither situation, such impunit# constitutes a failure on the part of the state toexercise its powers and prerogaties to deter, punish and preent iolence againstits subects! &t is also a failure of societ# to reect and condemn the brutaliationand intimidation of women at the hands of famil# members!

s those inoled in efforts to eradicate iolence from womens famil#lies attest, changing social attitudes and official policies that contribute to the

problem are arduous tasks! Axposing and criticiing domestic iolence calls into6uestion the structures and discourses of familial authorit#! "eeking means ofameliorating the problem entails challenges and changes to the wa#s in whichsuch authorit# is legitimated and enforced! &t entails, in short, changes in lawand

society!Aen in societies with robust legal rights for women, domestic iolence is

both commonplace and hidden, signaling an enduring difficult# to actiate a legalsolution! &n societies where womens rights are weak, their ulnerabilit# toiolence is compounded b# a lack of options to seek protection from the law! ndin societies where gender and famil# relations are deried from religious law, if

urists interpret and appl# the law to sanction iolence for specific purposes orunder certain circumstances, demands for protections and greater rights forwomen can be condemned as heres# or apostas#! &n Muslim societies wherefamil# relations are administered in accordance withsharia, intra+famil# iolenceis connected to the discourse and practices of religion! *hus, it is crucial toconsider the terms of this connection!2.Sharia and Domestic Violence

&n Muslim societies,shariafunctions both as specific legal rules for

organiing social relations, and as a general religio+cultural framework for normsand alues!33&n both senses, dominant interpretations ofshariaaccord men thestatus as heads of their families with guardianship oer and responsibilit# forwomen! *he complement to this is the expectation that women hae a dut# toobe# their 4guardians5 %husbands, fathers or other male heads of famil#'! *his

33

"pecific legal rules that epitomie and maintain gender ine6ualit# include mens right tomarr# up to four women while women are restricted to marriage to one man at a time) differencesin right to diorce, custod# and inheritance) and differences in legal competenc#! Deertheless,women are not entirel# disadantaged b# sharianor thoroughl# une6ual to men) women haelegal and financial rights, including independence %at least in principle' to manage their own

affairs! (omen are recognied as e6ual to men before Bod, the critical issue being not gender butdeotion and righteousness!


13/41

hierarchical and highl# patriarchal relationship is based on theshariaprinciplesof 4qawwama5 %authorit#, guardianship' and 4taa5 %obedience', from which

gender+differentiated rights and duties are deried!*he primar# source of the 9uranic principles of qawwamaand taais

"ura ?, Eerse 3?! *his same erse contains the most commonl# cited referenceused to assert mens right or option to beat disobedient women! lthough thiserse is translated@and interpreted@in a ariet# of wa#s,3?a literal Anglishtranslation, which captures popular understandings about authorit#,%dis'obedience and punishment, statesI

Men hae authorit# =qawwama> oer women because llah has made theone superior to the other, and because the# =men> spend their wealth tomaintain them =women>! Bood women are obedient =taa>! *he# guardtheir unseen parts because llah has guarded them! s for those =women>

from whom #ou fear disobedience =nusha8>, admonish them and sendthem to beds apart and beat them! *hen if the# obe# #ou, take no furtheraction against them! llah is high, supreme!3.

sghar li Angineer reports the historical origin of this erse as the caseof a man %"ad bin Rabi' who slapped his wife %8abiba bint aid' because shehad disobe#ed him! "he complained to her father, who complained to the rophetMuhammad! "#mpathiing with the woman, the rophet told her that she wasallowed the right to qisas%a form of legal retribution'! Men in the communit#

protested that this would gie women adantages oer them! earing socialunrest, the rophet sought and receied the reelation %?I3?' which effectiel#reersed his earlier ruling giing women the legal right to retaliate!3F

&n drawing interpretatie meaning from this erse, seeral factors are atissue! irst, because this was a revelation, it lends itself to interpretation that Bodsanctions beating disobedient wies as a last option %after admonishing them andabandoning their beds'! :ut because beating women was 6uite common in that

place and time, it also lends itself to the interpretation that Bod intended to restrictthe practice! Moreoer, to the extent thatshariafunctions as 4liing law5adaptable to changing circumstances %e!g!, through i"tihad', een the explicitsanctioning of beating can be construed not as an ageless and diine right but as acircumscribed means to express anger and frustration, and one that graduall#

should be abolished! or example, iah l+8ibri argues that the 9uranimposed limits on the common practice of beating, and transformed it into as#mbolic act!3H8itting was not to be a normatie standard of spousal relations but

3? or a discussion of interpretations of "ura ?I3? in medieal and modern &slamicthought, see :arbara "towasser, 4Bender &ssues and $ontemporar# 9uran &nterpretation,5 in

'slam 1ender and Social Chan%e, eds! Konne 8addad and Lohn Asposito %Dew KorkI OxfordCniersit# ress, 1--/'!

3. *his translation is from #he /oran, trans! D!L! ;awood %DKI enguin :ooks, 1-H?', p!3H0! or significantl# different translations of this "ura, see Angineer, #he $i%hts o! &omen in

'slam, op! cit!, p! ?F) bullahi n+Daim, 4&slam and (omens RightsI $ase "tud#,5 &omen,ivin% under Muslim ,aw Dossier1?G1., p! -H!

3F

Angineer, #he $i%hts o! &omen in 'slam, p! ?H!3H


14/41

used minimall# if it could not be aoided entirel#! l+8ibri supports this readingb# pointing to the rophets declaration to menI 4*he best among #ou are those

who are best toward their wies!5 &ndeed, on numerous occasions he told men notto beat their wies and condemned the practice!

Other 9uranic erses and hadithcondemn iolence between spouses! orexample, "ura 30, Eerse 21 describes marital relations as tran6uil, merciful andaffectionate, and the relationship itself as based on companionship, not serice ort#rann#! &n this ein, Riffat 8assan writes, 4Bod, who speaks through the 9uran,is characteried b# ustice, and


15/41

Marital rape is another form of domestic iolence that can findustification on the basis ofsharia.lthough rape is a punishable crime in eer#

Muslim societ#, nowhere is the criminal sanction extended to rape withinmarriage! Cndersharia, there is no harm@and thus no crime@in acts of sex

between people who are married! *hus, marital rape is literall# 4uncriminaliable5under dominant interpretations ofsharia.or example, "ura 2, Eerse 223

proides a 9uranic basis for mens unabridged sexual access to their wies! *hiserse stipulates that 4#our wies are ploughing fields for #ou) go to #our fieldwhen and as #ou like!5 lthough other 9uranic erses and hadithinstruct mennot to force themseles sexuall# upon their wies, these tend to be superceded oroershadowed b# the principle of female obedience!3-&ndeed, a wifes refusal tohae sex with her husband can be conceied as a defiance of her duties, and cangie rise to accusations of 4disobedience,5 thereb# triggering legalistic

ustification for beating!orced marriage is a form of ps#chological and emotional iolence %with

ph#sicall# iolent possibilities'! lthough the 9uran does not expressl# sanctionthis practice, the principles of male authorit# and female obedience createconditions in which womens subugation to their 4guardians5 can enable men toimpose their will on matters of marriage! (hile the 9uran recognies 4mature5%post+pubescent' womens right to enter freel# into marriage, their status as legal4minors5 under the authorit# of male guardians undermines their freedom orabilit# to assert this right in the face of male opposition!

(ithin patriarchal societies in general, there is little normatie acceptanceof social, legal or sexual autonom# for women! On the contrar#, womens optionsand behaior tend to be heail# regulated and restricted! &n contexts where genderand famil# relations are goerned b#sharia, wies hae a le%aldut# to concedeto male authorit#, as long as this authorit# is exercised in a manner compatiblewithsharia, and as long as the male fulfills his own obligations within therelationship! &f women should act in a wa# deemed 4deiant5 or 4disobedient,5depending on the wa# in whichshariais administered in a gien context,

punishment ma# be the prerogatie of the state, or ma# be left to the discretion ofmembers of the famil# or the communit#! :ut under either circumstance, Muslimwomens ulnerabilit# to iolence is related to urisprudential traditions and socialunderstandings of male authorit# and female obedience, and this proides fertile

ground for domestic iolence to occur with near+total impunit# for perpetrators!Of course, Muslim women are not uniquelyulnerable to domesticiolence! Dor are social attitudes about female obedience and masculine

prerogaties to 4discipline5 and 4punish5 women uni6uel# 4&slamic!5 (hat isuni6ue, or rather what is particular to the situation of Muslim women arerationaliations deriing fromsharia! &ndeed, the problem of domestic iolencein Muslim societies in man# wa#s resembles its counterpart elsewhere, and so too

3-

"ee ;awoud Al lami and ;oreen 8inchcliffe, 'slamic Marria%e and Divorce ,aws o!the Arab &orld %*he 8agueI $&MAJ and 7luwer Jaw &nternational, 1--F') and ;awoud Al

lami, #he Marria%e Contract in 'slamic ,aw in the Shariah and Personal Status ,aws o! *%ytand Morocco%JondonI Braham P *rotman, 1--2'!


16/41

do the difficulties in combating it, gien the gender biases operatie in allsocieties! *hese difficulties hae gien rise to efforts to deelop an international

legal framework for dealing with a problem that is global in scope and harmful towomen eer#where!3.nternationali4in( the Stru((le a(ainst Domestic Violence

&n the 1-/0s, womens organiations around the world began campaigningfor international recognition and prohibition of domestic iolence as a humanrights iolation! &n the 1--0s, domestic iolence became a maor issue in aworldwide campaign to end iolence against women, part of a larger ongoingeffort to promote womens rights as human rights!

(hile these initiaties are important and commendable, their timing raisessome troubling 6uestions! 48uman rights5 were established in the aftermath of

(orld (ar && through the promulgation of a new set of international laws4uniersaliing5 the rights of human beings eer#where!?0Eiolence@that is, thehorrors and suffering that occurred during ((&&@was the driing concern tostimulate this reolution in law!

Oer the decades, there hae been prodigious efforts@and achieements@to prohibit numerous forms of iolence as human rights iolations! (hat, then,explains the dela# in recogniing and condemning domestic iolence as a humanrights iolationN One ke# explanation deries from the agueness andinconsistenc# of international law in regard to domestic relationships! *here arethree general factors at issueI 1' the state+centered nature of international law) 2'the enduring emphasis in human rights discourse and practice on ciil and

political rights %i!e!, 4public5 rights') and 3' deference to the famil# as a 4priate5domain! *he dela# in recogniing domestic iolence as a human rights iolationcan be explained b# the difficult# of framing abuses suffered b# women at homeinto the conentional framework of international law! 4*he distinction between

public and priate life in international law is one of the principal theoreticalbarriers to this effort!5?1

lthough the Cniersal ;eclaration of 8uman Rights %1-?/' and otherhuman rights instruments that came into force in the 1-F0s and H0s %e!g!, the&nternational $onentions on $iil and olitical Rights, and "ocial, Aconomic and$ultural Rights' prohibit discrimination on the basis of sex, international law

proed a weak resource for women! *his weakness inspired womens rightsactiists to begin pressing to extend international law into the 4priate sphere!5 maor breakthrough was the $onention on the Alimination of ll

orms of ;iscrimination against (omen %$A;(', which was adopted b# theCnited Dations Beneral ssembl# in 1-H- and came into force in 1-/1! $A;(often is described as the international bill of rights for women!?2&t clearl#

?0

or a histor# of human rights, see Jouis 8enkin, #he A%e o! $i%hts %Dew KorkI$olumbia Cniersit# ress, 1--1'!

?1 ;onna "ullian, 4*he ublicGriate ;istinction in &nternational 8uman Rights Jaw,5in Lulie eters and ndrea (olper, eds!, &omens $i%hts 0uman $i%hts( 'nternational +eminist

Persectives%Dew KorkI Routledge, 1--.', p! 12H!?2


17/41

establishes the 4indiisibilit#5 of womens rights in public and priate life, ?3andbrings iolations b# indiiduals within the puriew of international law, at least

indirectl#, b# making states responsible for the actions of priate parties %article2'! Ratification or accession to $A;( obligates states to abolish all forms ofdiscrimination against women! (hile $A;( recognies the importance ofculture and tradition in shaping gender roles and famil# relations, it imposes uponstates the obligation to take 4all appropriate measures5 to modif# social andcultural patterns of conduct that are discriminator# or harmful toward women!

;espite the gains that $A;( represents, it has some serious limitations!&t does not e9licitlyidentif# iolence against women as a human rights iolation!nd it has een less enforcement power than most other human rights treaties!??*he $ommittee that administers $A;( is limited to taking reports from state

parties about their efforts to implement its re6uirements, and issuing

recommendations! :ut the most glaring limitations derie from the reserationsthat man# states hae attached to their ratification or accession to $A;(!lthough $A;( is the second most widel# ratified human rights treat# %afterthe $onention on the Rights of the $hild', it is the one with the mostreserations!

*o redress the limitations of $A;( on matters of iolence againstwomen, in the 1-/0s womens rights groups 4began a worldwide campaign tomake freedom from domestic and other forms of iolence a uniersall#recognied human right!5?.&n 1-/., the final document of the CD *hird (orld$onference on (omen %held in Dairobi, 7en#a' affirmed the seriousness ofiolence against women and the need for international measures to combat it!

&n 1--2, the $ommittee for $A;( issued Beneral RecommendationDumber 1-, which holds that gender+based iolence is a form of discriminationthat states must take measures to eradicate! &n 1--3, womens groups presented a

petition with almost .00,000 signatures from 12/ countries to delegates at the(orld $onference on 8uman Rights %Eienna', demanding the recognition ofiolence against women as a iolation of their rights!?Flso in 1--3, the CDadopted the ;eclaration on the Alimination of Eiolence against (omen, definingit as 4an# act of gender+based iolence that results in, or is likel# to result in,

ph#sical, sexual or mental harm or suffering to women, including threats of suchacts, coercion or arbitrar# depriation of libert#, whether occurring in public or

s of pril 1, 2000, $A;( had been ratified or acceded to b# 1F. states! Onl# 1Hstates had notratified or acceded to $A;(, but of these, 11 hae maorit# Muslim populationsIfghanistan, :ahrain, &ran, Mauritania, Oman, 9atar, "audi rabia, "omalia, "udan, "#rian rabRepublic, and the Cnited rab Amirates! #he &orlds &omen :;;;( #rends and Statistics %DKICnited Dations, 2000', pp! 1.1+.2! "ince then, "audi rabia has signed!

?3 "ee "usana ried, ed!, #he 'ndivisibility o! &omens 0uman $i%hts( A Continuin%Dialo%ue%Dew :runswick, DLI $enter for (omens Blobal Jeadership, 1--?'!

?? Lean orn, 4(omens Rights re 8uman RightsI &nternational Jaw and the $ulture of;omestic Eiolence,5 in ;oroth# #ers $ounts, Ludith :rown, and Lac6uel#n $ampbell, eds!, #o

0ave and #o 0it( Cultural Persectives on &i!e )eatin% 2nd edition %Crbana and $hicagoICniersit# of &llinois ress, 1---', p! 2//+/-!

?. orn, 4(omens Rights re 8uman Rights,5 p! 2/-!?F

'bid.


18/41

priate life!5 *his ;eclaration explicitl# includes iolence occurring in the famil#,including wife battering and marital rape!

&n 1--?, the CD appointed Radhika $oomarswam# to sere as the first"pecial Rapporteur on Eiolence against (omen! *he Rapporteurs role is to buildon and extend CD initiaties! 8er mandate includes domestic iolence and, moregenerall#, promotion of adherence to all international instruments and treatiesestablishing womens rights as human rights!

&n 1--., the :eiing latform of ction %issued at the conclusion of theourth (orld $onference on (omen' included an affirmation of the need tocombat domestic iolence!?HMore than an# preious initiatie, the :eiinglatform articulates a clear set of factors that perpetuate domestic iolence, ?/all ofwhich goernments are expected to remed#!?-&t also identifies the lack ofinformation and statistical data about domestic iolence as an obstacle to

combating it! *his inspired the (orld 8ealth Organiation %(8O' to establish adatabase on iolence against women and deelop a 6uestionnaire and guidelinesfor undertaking national sure#s, although this process is still in its nascentstages!.0

&n 1---, the CD adopted an Optional rotocol to $A;(, which allowsindiidual women or groups of women %from signator# states' who haeexhausted domestic remedies to petition the $ommittee for $A;( aboutiolations of the $onention b# their goernments! *his rotocol also grants the$ommittee the authorit# to conduct in6uiries into grae or s#stematic abuses ofwomens human rights in states that are part# to the $onention and therotocol!.1

$oomarswam# has taken a leading role in formulating and promoting legalrationales to clarif# states responsibilities to prohibit and combat domestic

?H or an example of the wa# the :eiing latform has been utilied b# actiists whowork on or in Muslim societies, see Mahna fkhami, Breta 8ofmann Demiroff and 8alehEaeri, Sa!e and Secure( *liminatin% Violence a%ainst &omen and 1irls in Muslim Societies%:ethesda, M;I "isterhood &s Blobal &nstitute, 1--/'!

?/ *he factors identified in the :eiing latform of ction includeI 4social pressures,notabl# the shame of denouncing certain acts that hae been perpetrated against women) womens

lack of access to legal information, aid or protection) the lack of laws that effectiel# prohibitiolence against women) failure to reform existing laws) inade6uate efforts on the part ofauthorities to promote awareness of and enforce existing laws) and the absence of educational andother means to address the causes and conse6uences of iolence5 %"ection ;, aragraph 11/'!

?-Measures identified in the :eiing latform of ction for goernments to instituteincludeI 4condemn iolence against women and refrain from inoking an# custom, tradition orreligious consideration to aoid their obligations


19/41

iolence in accordance with their international obligations!.2*he two maor legaldoctrines identified for these purposes areI

1! #he doctrine o! state resonsibility and due dili%enceI "tates hae aninternationall# recognied responsibilit# and obligation to exercise 4duediligence5 to preent, inestigate and punish acts b# priate actors thatconstitute iolations of human rights! Moreoer, where a state fails to assumethis responsibilit#, it is complicit in the iolations committed b# priate actors!$omplicit# includes perasie non+action! "tate responsibilit# includes theinstitution of effectie legal measures, including penal sanctions, ciilremedies and compensator# proisions to protect women against domesticiolence) preentie measures, including public information and education

programs to change attitudes that contribute to the perpetuation of domesticiolence) and protectie measures to assist women who are ictims or at risk

of domestic iolence!2! #he doctrine o! equal rotection o! the law(&nternational law imposes a dut#

on states not to discriminate on a number of specified grounds, includingsexGgender! ailure to fulfill this dut# constitutes a iolation of internationallaw b# the state! *his means that states must appl# and enforce the samecriminal sanctions and punishments in cases of domestic iolence as areapplied to an# other t#pes of inter+personal iolence! n# pattern of non+enforcement amounts to une6ual and discriminator# treatment on the basis ofsexGgender!.3

*he emphasis of these two doctrines clearl# links gender ine6ualit# anddomestic iolence, and the obligations of states to combat both! *hese linkagesare based on the following assumptions and principlesI 1' gender iolence is aform of discrimination, and as such, iolates international human rights standardswhich all states are obligated to adhere to in their own practices and to enforcewithin all relationships %public and priate' within their urisdiction) 2' womenhae a right to e6ualit# with men, and this encompasses all relationships,including those of the famil#) 3' local laws that sanction gender ine6ualit# must

be reformed to proide e6ual protections for women and men, and enforcementmust be non+discriminator#!

*he deelopment of an international legal framework for womens rightsas human rights has contributed to the mobiliation of an international struggle

.2 Radhika $oomarswam#, 4$ombating ;omestic Eiolence,5 op! cit!

.3 third doctrine e6uating domestic iolence with torture and cruel, inhuman anddegrading treatment is being promoted b# some feminist legal and human rights experts! *heir aimis to bring the force and remed# of laws prohibiting torture to bear on domestic iolence! *he

prohibition against torture is one of the strongest principles of international human rights law,since it is absolutel# non+derogable under an# circumstances! *he prohibition against torture hasac6uired the status of customar# law, which means that the power to enforce it and punish

perpetrators is 4extra+territorial!5 &n other words, the courts of an# state can be used to tr#perpetrators if their own state fails to do so! *hose who adocate the e6uating of domestic iolencewith torture argue that the practices hae four common elementsI a' both cause seere ph#sicalandGor mental pain, b' both are intentionall# inflicted, c' both are utilied for specified purposes,and d' both entail some form of official inolement, whether direct or tacit! 8oweer, this

doctrine transforms %some would argue misconstrues' the international legal definition of torture,which hinges on the perpetration of iolence b# aublic authorityagainst people in custody!


20/41

against domestic iolence!.?"uch efforts hae heightened and focusedinternational concern about the rights of women in their relations with famil#

members! Making international standards of rights a realit# for women around theworld, though, is an ongoing and difficult proect! &t entails bringing local legalregimes into conformit# with international law! nd it entails reform of socialattitudes to recognie the legitimac# of womens rights and a need for laws andother measures to protect them from iolence!

5.Cultures of 'esistance, 6r Sayin( 78o9 to niversalism

*he successes in defining and promoting womens rights, including theprohibition of domestic iolence as a human rights iolation, has generatedcriticism and reprisals! "ocial conseraties around the world hae respondednegatiel# to efforts to empower women and endow them with enforceable rights

within the famil#, charging that such initiaties constitute an assault on 4famil#alues,5 traditions, national cultures, and so on! &n man# societies, official and

popular aersion to enforcing international standards for domestic relationships isfar more powerful and influential than the forces seeking to promote and protectthe rights and well+being of women!

*he promotion of womens rights as human rights, and the recentdeclarations and conentions to internationalie and standardie those rights hae

become imbricated in raging debates oer the legitimac# of human rights ingeneral! &ndeed, the rights of women constitute the 6uintessential challenge to the4uniersalit#5 of human rights! *hese debates hae been particularl# igorous inman# deeloping countries! $ritics and opponents argue that international legalstandards contraene local customs and cultures andGor religious beliefs and

practices! &ndeed, the emphasis on indiiduals as rights+bearing subects, and thetendenc# to prioritie political and ciil rights oer social, economic and culturalrights lend weight to arguments that human rights are 4(estern5 and %thus'4alien!5.."uch arguments are bolstered b# the histor# of human rights) themaorit# of contemporar# states were, at the time human rights were created, stillcolonied b# Auropean powers and thus did not participate in the earl# stages ofestablishing a framework for human rights!

.?

"ee $harlotte :unch and Diamh Reill#, Demandin% Accountability( #he 1lobalCamai%n and Vienna #ribunal !or &omens 0uman $i%hts %Dew :runswick, DLI $enter for(omens Blobal Jeadership, Rutgers Cniersit# and Cnited Dations ;eelopment und for(omen, 1---') "usana *! ried, ed!, #he 'ndivisibility o! &omens 0uman $i%hts( A Continuin%

Dialo%ue %Dew :runswick, DLI $enter for (omens Blobal Jeadership, Rutgers Cniersit#,1--?'!

.."ee artha $hatteree, 4Religious Minorities and the "ecular "tateI Reflections on an&ndian &mpasse,5Public Culture, ol! / %1--.') red 8allida#, 4Relatiism and Cniersalism in8uman RightsI *he $ase of the &slamic Middle Aast,5 Political Studies, ol! ?3 %1--.') Rhoda8oward, 4Broup ersus &ndiidual &dentit# in the frican ;ebate,5 in0uman $i%hts in A!rica(Cross-Cultural Persectives, eds! bdullahi n+Daim and rancis ;eng %(ashington, ;$I *he:rookings &nstitution, 1--0') R! anikkar, 4&s the Dotion of 8uman Rights a (estern $onceptN5

Dio%enes, no! 120 %(inter 1-/2') :assam *ibi, 4&slamic JawG"haria, 8uman Rights, Cniersal

Moralit# and &nternational Relations,5 0uman $i%hts


21/41

Resistance to the applicabilit# of international law can not be understoodmerel# as a regressie reaction to change! Rather, it must be understood as a

relational resonseto historic conditions and globaliation! *he creation %andcontinuing expansion' of human rights is one manifestation of the globaliation ofdistinctl# modern legal norms and political relations! &n broad terms, this processof globaliation includes the establishment of modern %soereign, bureaucratic'states, which had, b# the latter decades of the 20thcentur#, become irtuall#uniersal %albeit continuousl# subect to local demographic and territorial shiftsand challenges'! Blobaliation also includes the articulation of increasingl#detailed standards and norms of goernment that appl#, at least in principle, to allstates!

*he internationaliation of a common set of rights for all human beingshas prooked a great deal of anxiet# about cultural homogeniation, especiall# in

societies in the Middle Aast, frica and sia! *o the extent that human rights areerceivedas a (estern construct, their legitimac# in non+(estern societies isdebatable! Moreoer, the re6uirement to reform local laws and to transform localsocial and political relations to conform to international law is widel# construed asa manifestation of enduring (estern hegemon#, a neo+imperial twist on acenturies+old global power d#namic in which alues and norms are articulated andspread unidirectionall# from the (est to 4the rest!5.F

(omens rights, and the issue of gender relations more generall#, haebecome the primar# redoubts of these anxieties about cultural and legalimperialism! (hile certain aspects of modernit#, such as national securit# and

bureaucratiation, hae been embraced b# states eer#where, the politics ofculture@specificall# cultural difference@hae marked women as a terrain for

presering that which is %imagined to be' particular to a gien societ#! &n thecolonial era, women were made the principle targets for social transformation b#(estern administrators and $hristian missionaries %i!e!, the 4ciiliing mission5'!Moderniing reformers from these societies also targeted women as obects forinterention and change, whether to accommodate the imperaties of colonialadministrations or to ustif# demands for self+rule! *hese ariants of 4colonialfeminism5 made the liberation of women both a means and a goal ofmoderniation! ccording to ;eni 7andi#oti, this created a close association inthe minds of man# Muslims between the %changing' status of women and cultural

imperialism, and sparked counterailing attempts to maintain and reinforce4authentic5 relations and roles for women to resist such imperialism!.H&slamic authenticit# ma# therefore be eoked to articulate a wide arra# ofworldl# disaffections, from imperialist domination to class antagonisms!*his opens up the possibilit# of expressing such antagonisms in moral and

.For a discussion of the implications of this on women, see $handra *alpade Mohant#,4Cnder (estern A#esI eminist "cholarship and $olonial ;iscourses,5 in #hird &orld &omenand the Politics o! +eminism, eds! Mohant#, nn Russo and Jourdes *orres %:loomington, &DI&ndiana Cniersit# ress, 1--1'!.H

;eni 7andi#oti, 4&ntroduction,5 in &omen 'slam and the State, ed! 7andi#oti%hiladelphiaI *emple Cniersit# ress, 1--1', p! H!


22/41

cultural terms, with images of womens purit# exercising a powerfulmobilising influence!./

(hen women are treated as markers of cultural authenticit#, and whencultural discourses posit that womens human rights are an alien concept, part of acultural onslaught emanating from 4elsewhere,5 the disadantages that womenexperience as womencan be ustified and defended@een glorified@as an aspectof that particular culture! $onersel#, when the promotion of womens rights isread as a sign@and imperatie@of moderniation %b# esting women withindiidual and inalienable rights', and when this goal demands the reision orreocation of local laws and practices, then it often prookes counterailingefforts to resist globaliation and foreign influence b# defending that which is%deemed' authentic and particular to a gien culture or societ#! .-

(hether state agents are the authors of such resistance, or are pushed inthese directions b# powerful constituencies, it is the state@as both the arbiter oflaw and the representatie of societ# in the international legal order@that bears

primar# responsibilit# for the proision and enforcement of rights for its subects!*he struggles oer womens rights are, in man# wa#s, contestations oer legal

urisdiction and authorit#, namel# whether international legal standards willpreail to guide state polic#, or whether other bodies of law %constitutional,religious, customar#' are accorded precedence when there is a contradiction!

lthough resistance to womens rights is strong, it rarel# manifests itselfas an open de!enseof iolence against women as a cultural alue or end in its ownright %possible exceptions being female genital cutting andsatiF0'! Morecommonl#, concern about the safet# and well+being of women is subordinated toother alues or ends, including social stabilit#, male superiorit#, and, in somecontexts, adherence to religion andGor tradition! :ut if this seres to enable

practices that constitute domestic iolence, whether b# tolerating or ignoringthem, it literall# sacrifices women to some other 4social good!5 *here is@orshould be@an understood difference between the perpetration of iolence againstwomen because o! culture%i!e!, for reasons related to cultural ideologies andrelations' and the conflation of this iolence with the culture itsel!! s Lean orn

points outI&f wife beating occurs in almost eer# societ# in the world, if it is almost

uniersal, then can it be said to be part of an# societ#s uni6ue cultureN &tis certainl# not what sets that societ# apart from all others, that whichgies the societ# its special character! One could argue that, een if

./'bid!, p! /!

.-"ee Jeila hmed, &omen and 1ender in 'slam( 0istorical $oots o! a Modern Debate%Dew 8aen, $*I Kale Cniersit# ress, 1--2') atricia Leffre# and mrita :asu, eds!,

Aroriatin% 1ender( &omens Activism and Politici8ed $eli%ion in South Asia %Dew KorkIRoutledge, 1--/'!

F0"ee Jata Mani, 4$ontentious *raditionsI *he ;ebate on "ati in $olonial &ndia,5 in$ecastin% &omen( *ssays in Colonial 0istory, eds! 7umkum "angari and "udesh Eaid %Dew;elhiI 7ali for (omen, 1-/-') $hristine (alle#, 4"earching for EoicesI eminism,

nthropolog# and the Blobal ;ebate oer emale Benital Operations,5 Cultural Anthroolo%y,ol! 12, no! 3 %1--H'!


23/41

international law should recognie cultural differences, uniersall#applicable rules of international law ma# goern an# behaior that is itself

all but uniersal!F1&n societies where resistance to womens rights is expressed as a defense

of social traditions andGor religious norms, womens rights actiists hae beenchallenged to cultiate a persuasie distinction between 4culture5 and iolenceagainst women! ;isrupting tacit tolerance for practices that constitute domesticiolence re6uires efforts to make such practices isible as violencetodelegitimie ustifications for the use of iolence b# bringing culturall# releantarguments to bear in the defense of womens safet# and well+being, and tochallenge laws, urisprudence and ideologies that construe such practices as italto the greater good of societ#!

;.Sharia and #versus


24/41

and akistan!F3*he CD "ecretar# Beneral, pursuing the resolutions re6uest forcomments and proposals about the contents of such a ;eclaration, receied

responses from fghanistan, Ag#pt, &ra6, Morocco, "udan, "#ria and *urke#, allof which were supportie of the idea of womens rights! or example,fghanistan recommended that 4intense educational efforts5 be made to combat4traditions, customs and usages which thwart the adancement of women!5F?Ag#pts response called for educational campaigns to oercome discriminator#customs and traditions!F.

;uring the process of drafting the ;eclaration, a controers# arose oerwhether it should call for the abolitionor the modi!icationof customs and lawsthat perpetuate discrimination! *his presaged the kind of controers# that wouldarise around the drafting and passage of $A;(! :ut because the ;eclarationwas ust that@a statement lacking contractual force@it was passed unanimousl#!

*he drafting of $A;( was a more difficult process, with a full week spentdebating articles 1. and 1F, which gie women e6ual capacit# before the law, ande6ualit# under marriage and famil# law!FF(hen the draft $onention was otedupon, most of the abstentions on these articles came from Muslim countries! &nthe final ote, the $onention passed 130 to 0, with 11 abstentions, including:angladesh, ;ibouti, Mauritania, Morocco and "audi rabia!

$A;( was opened for signatures in 1-/0! Most of the countries withmaorit# Muslim populations that havesigned $A;( hae enteredreserations!FHnd all of the reserations except those of &ndonesia, *urke# andKemen %former ;emocratic Republic of Kemen' relate to the preseration of

shariain matters of personal status!F/:ut the reserations themseles ar# inscope, terms and specificit#! or example, Jib#a proclaimed that its accession to$A;( is subect to a sweeping general reseration of an# proisions thatconflict with personal status laws deried fromsharia! :angladesh resered onarticle 2, the core of the treat#, on the grounds that it conflicts withsharia! Ag#ptand Morocco entered reserations similar to :angladesh, but couched in adifferent language, namel# stating a willingness to compl# with article 2 as longas it does not conflict withsharia!

s a matter of explanation, Morocco add=ed> that 4certain of theproisions contained in the Moroccan $ode of ersonal "tatus accordingwomen rights that differ from the rights conferred on men ma# not be

infringed upon or abrogated because the# derie primaril# from theF3

Lane $onnors, 4*he (omens $onention in the Muslim (orld,5 in Kamani, ed!,+eminism and 'slam, op! cit!, p! 3.3!

F?$ited in $onnors, 4*he (omens $onention in the Muslim (orld,5 p! 3.3!F.'bid.FF'bid!, p! 3.?!FH *his comparatie discussion of reserations to $A;( draws from $onnors, 4*he

(omens $onention in the Muslim (orld!5F/ *he reserations of &ndonesia and Kemen pertain to article 2-%1' which allows

reference of an# dispute oer the $onention to the &nternational $ourt of Lustice! *urke#sreserations include article 2-%1' as well as arious paragraphs of articles 1. and 1F according

women legal capacit# identical to that of men in certain famil# matters! $onnors, 4*he (omens$onention in the Muslim (orld,5 pp! 3.?+..!


25/41

&slamic sharia, which stries, among its other obecties, to strike abalance between the spouses in order to presere the coherence of famil#

life!5F-Most of the reserations b# Muslim countries pertain to article 1., which

grants women e6ualit# with men before the law, and article 1F, which re6uiresstates to eliminate discrimination against women in matters of marriage andfamil# relations!H0rticle 1F, along with article 2, constitutes the crucial core ofthe $onention because it addresses relations and rights in the 4priate sphere,5which is 4the fundamental site of discrimination against women which,effectiel#, sets the framework and opportunit# for discrimination in publiclife!5H1:angladesh, Ag#pt, &ra6, Lordan, Morocco, *unisia and 7uwait all enteredreserations to article 1F! (hile some of these countries did not elaborate on their

reasons for resering, Ag#pt, &ra6, Lordan and Morocco offered explanations thatwomen are 4adantaged5 b# the domestic legal regime %e!g!, through pa#ment of adower, and mens obligations to support their wies financiall#'! or example,Ag#pts explanation states that the basis of spousal relations undershariais4e6uialenc# of rights and duties so as to ensure complimentarit# whichguarantees true e6ualit# between spouses, not 6uasi+e6ualit# that renders themarriage a burden on the wife!5H2

*he substance and scope of reserations b# Muslim countries sparked agreat deal of controers#! "ome countries, notabl# Mexico, Berman# and the

Dordic states, protested that the reserations are incompatible with the principlesand proisions of the $onention as a whole!H3"weden was the most adamant,issuing a statement that such reserations

would render a basic international obligation of a contractual naturemeaningless! &ncompatible reserations


26/41

the whole of the *hird (orld!5H.*hese discussions about reserations continued inarious sessions and committee meetings of the CD! lthough Muslim

goernments were not the onl# ones to enter reserations, their reserationsarticulated a common theme about the precedence ofsharia, leading to a generalsense that the controers# was a debate about &slam!

ollowing the submission of :angladeshs first report to the $ommittee for$A;(, and no doubt influenced b# the contents of that report, the $ommitteeformulated Beneral Recommendation Dumber ? expressing concern about thesignificant number and potential incompatibilit# of reserations as the# affect theobect and purpose of the $onention! *he $ommittee also re6uested the CD 4to

promote or undertake studies on the status and e6ualit# of women in the famil# in &slam!5HF&n response,:angladesh as well as Ag#pt charged that this amounted to cultural imperialism

and religious intolerance! "uch a charge resonated with other *hird (orldcountries, not onl# those with maorit# Muslim populations! *his led to the passageof a CD resolution s6uelching the $ommittees proposal for studies about womenin &slam! ccording to nn Ma#er,

*he result was that, faced with appeals to cultural particularism, the CDtolerated a situation where some countries would be treated as parties to aconention whose substantie proisions the# had professed theirunwillingness to abide b#! &mplicitl#, the CD ac6uiesced to the culturalrelatiist position on womens rights


27/41

all rights were subect to &slamic law, and that where there was a contradictionbetween international law andsharia, the latter would take precedence!

*he assertion on the part of goernments that religious beliefs andurisprudence ustif# the disregard for international legal standards illustratespersisting and onerous obstacles to womens rights! On the one hand, the soereignprerogaties of states doproide for autonom# and independence on the legalcharacter of rights within a countr#! On the other, the international nature of humanrights standards and the urisdiction of international law obligate states to conformunder the doctrine of state responsibilit#! &ndeed, to be a stateis to be legall#subect to the re6uirements and restrictions enshrined in international law!bdullahi n+Daim argues that the most effectie means of reconciling statesoereignt# and local culture with international legal standards entails thecultiation of a broader and deeper 4oerlapping consensus5 on the uniersal

cultural legitimac# of human rights, including womens rights!H-&n exercising their soereign prerogaties, Muslim goernments hae

sought to present themseles as defenders of 4&slam5 b# building a firewall aroundsharia! On the international leel, despite the controers# that this has prooked,it epitomies the capacit# of states to speak and act in the name of their societies!&ndeed, such a conflation is characteristic of the state+centric international order!Moreoer, criticisms of Muslim goernments policies b# 4others,5 be the#representaties of foreign goernments or international organiations, can furtherentrench resistance to human rights within those societies!

:ut does such a stance actuall# represent a 4Muslim consensus5N *here is asubstantial, albeit still marginal, discourse withinMuslim societies that 6uestionsthe putatie incompatibilit# of &slam and womens human rights, and, b# extensiongoernmental positions that assume that the# are irreconcilable! *his alternatiediscourse includes efforts to reinterpret elements ofshariato proide for moreegalitarian gender relations, and the censure or prohibition of practices that harm ordisadantage women!

Ket the degree to which this discourse can get a public hearing or impactupon national polic# is limited b# goernments themseles! Man# goernmentshae acted to repress scholars, actiists and organiations adocating womensrights, een when such adocac# seeks to show their compatibilit# to &slam! Dala8amadeh describes this as 4the authoritarian discourse of silence,5 which produces

a sterile 4uridical monologue!5/0

*he e!!ectis to reif# religion b# conflating4&slam5 with goernment positions! *he meansentails the use of state power tostifle and preclude dissenting iews or alternatie interpretations of religion! :utthe problem of politicall# authoritarian states, which characterie the maorit# ofregimes across the three regions, is perpetuated@een bolstered@b# their capacit#to use religion %albeit in ar#ing wa#s, as elaborated in the following section' to

ustif# the lack, restriction or een outright iolation of rights of women!

H- "ee bdullahi n+Daim, 4"tate Responsibilit# under &nternational 8uman Rights Jawto $hange Religious and $ustomar# Jaws,5 in Rebecca $ook, ed!, 0uman $i%hts o! &omen(

ational and 'nternational Persectives%hiladelphiaI Cniersit# of enns#lania ress, 1--?'!/0

Dala 8amadeh, 4&slamic amil# JegislationI *he uthoritarian ;iscourse of "ilence,5in Kamani, ed!,+eminism and 'slam, op! cit!, p! 3?F!


28/41

1=.Sharia, the State and Domestic Violence

*he propagation of a collectie trans+national and official position on theincompatibilit# of womens rights and &slam belies ariations in the role and usesofshariawithin Muslim societies, as well as differences between the threeregions! *o understand these ariations, the most crucial issue is the relationship

between religion and the state! &n an# gien countr#, this relationship is informedb# the particular histor# of state formation and deelopment, as well as thedemographic composition of the population! &n the Middle Aast, Muslimscomprise a maorit# of the population in eer# countr# except &srael! &slam is thedominant religion across the region, and most Middle Aastern goernmentsidentif# it as the official religion! &n sub+"aharan frica and sia, Muslimscomprise maorities in some countries, whereas in others Muslim populations co+

exist with populations of other religions!&n Muslim societies in sub+"aharan frica, more so than the other two

regions, isolating the role ofshariafrom other bodies of law %customar#, colonialand national' is difficult because the spread of &slam was a gradual process, inman# places combining s#ncreticall# with local customs and cultures! notherregional distinction is that all the sub+"aharan frican countries that havesigned$A;( hae done so without entering reserations! 8oweer, such willingnesshas not, generall#, translated into a more actiist stance b# frican goernmentson matters of womens rights! &n all three regions, famil# and social relations are

patriarchal, andshariahas tended to bolster these arrangements!&t ma# well be that restrictions imposed b# &slamic and other forms ofcustomar# laws are reinforced and magnified b# state structures thatinstitutionalie both (estern and indigenous elements of patriarch#! llthese elements come together to disadantage women is+ is men! *hesedisadantages exist in all societies! *he degree and t#pe of disadantagediffers from culture to culture but the fact of disadantage is uniersal andcertainl# not uni6ue to &slamic societies!/1

One wa# of engaging a comparatie approach to the relationship between

domestic iolence andshariais to highlight ariations in the relationshipbetween religion and the state! *his relationship can be diided into three broad

categoriesI 1' 4$ommunaliation5I religious laws, institutions and authorities areaccorded semi+autonom# from the state) 2' 4Dationaliation5I religious laws andurisprudence are incorporated into or influential oer the states legal regime) and3' 4*heocratiation5I the state bases its own authorit# upon religious law and

urisprudence!

Communali8ationI &n countries where separate s#stems of personal statuslaws are applied to members of different communities, there are 4two tiers5 oflaw, one under the direct control of the state, and the other based on religion

/1 :arbara $allawa# and Juc# $reee#, 4(omen and the "tate in &slamic (est frica,5

in &omen the State and Develoment, eds! "ue Allen $harlton, Lana Aerett and 7athleen "taudt%lban#I "CDK ress, 1-/-', p! /!


29/41

%andGor custom' and semi+autonomous from the states legal authorit#! &n suchcontexts, laws and legal institutions goerning famil# relations are not onl#

legall# separate from state law, but also are regarded ideolo%ically as 4outside5the states domain!

&srael, &ndia and Digeria represent examples of countries where personalstatus laws are communalied! &n all three, the populations are religiousl# dierse,the national political s#stems are 4non+religious,5 and each has a constitutionall#+

based legal s#stem!/2&n &srael, communaliation works to proide eer# religiousgroup %Lews, $hristians, Muslims, ;rue' with its own personal status lawsadministered b# religious authorities,/3whereas in &ndia, communaliation appliesonl# to minorities, not the 8indu maorit#! &n Digeria, sectarian law isadministered under the rubric of regional states %rather than communaliation on anational scale'!

&n &srael and &ndia, this two+tiered s#stem was instituted as part of abroader proect of national integration to accommodate religious and socialdifferences and encourage lo#alt# to@or dependenc# on@the state b# religiousauthorities and constituencies) communal autonom# oer domestic matters formedan element of the 4social contract5 in these countries! &n Digeria,communaliation@and more specificall# &slamiation@is of a more recentintage! :ut in all three, communaliation of personal status laws seres todeprie women of e6ual citi8enshi ri%hts.*his extends to the issue of domesticiolence b# impeding or preenting ictims from seeking protection from thestate, since what occurs in the famil# is le%ally constructedas a 4communal5issue, not the states concern!

&n &ndia, the administration ofshariais oerseen b# the ll &ndia Muslimersonal Jaw :oard! $ommunal autonom# has been the subect of debate sinceindependence, challenged b# those who adocate a uniform ciil code for

personal status issues that would appl# to all &ndians regardless of religion! *hedebate heated up in 1-/. following the notorious "hah :ano case! *he &ndian"upreme $ourt ruled that "hah :ano, a diorced Muslim woman, had the right toreceie maintenance from her husband under "ection 12. of the $riminalrocedure $ode of &ndia! *his prooked conseratie Muslim religious leadersand the ll &ndia Muslim ersonal Jaw :oard to protest state interference in a4communal5 matter! *he &ndian goernment capitulated to the pressure and

passed a new law %the Muslim (omen =rotection of Rights in ;iorce> ct'negating the court ruling and fortif#ing the authorit# of &slamic law and theauthorit# of religious institutions!/?

/2

(hile &ndia and Digeria hae a constitution, &srael does not! 8oweer, &srael has a set of4:asic Jaws5 that proide a constitutional framework for goernment!

/3 "ee :arbara "wirski, 4*he $itienship of Lewish and alestinian (omen in &srael,5 in1ender and Citi8enshi in the Middle *ast, ed! "uad Loseph %"#racuse, DKI "#racuse Cniersit#ress, 2000'!/?

"ee 7irti "ingh, 4Obstacles to (omens Rights in &ndia,5 in 0uman $i%hts o! &omen,

ed! Rebecca $ook, op! cit) Radha 7umar, 4&dentit# olitics and the $ontemporar# &ndian eministMoement,5 in 'dentity Politics and &omen( Cultural $eassertions and +eminisms in


30/41

&n &ndia %like other "outh sian countries', estimated rates of domesticiolence tend to be among the highest in the world! Axperts and actiists explain

this b# emphasiing the link between iolence against women and low socio+economic status, which characteries the situation for the ast maorit#! (hile

poert# itself is not causalfor iolence against women, it can increase womensulnerabilit#! or example, one form of domestic iolence that is perasie in"outh sia, but particular to that region, is 4bride burning!5 *his refers to thekilling of women %often staged as a 4kitchen accident5' for their failure orinabilit# to proide additional dowr# resources to the husbands famil#! lthoughthe origin of this phenomenon is rooted in 8indu practice, it has spread to Muslimcommunities in &ndia as well as akistan and :angladesh! &n &ndia, the parliament

passed a law criminaliing bride burning and other forms of dowr#+relatedharassment in 1-/3 %supplementing a 1-F1 law'! 8oweer, the communaliation

ofshariahas left Muslims be#ond the reach of these state interentions,including criminal sanctions, for dowr#+related iolence and murder) the ;owr#rohibition ct %1-/F' exempts 4persons to whom Muslim ersonal Jaw %"hariat'applies!5

&n Digeria, the role ofshariahas been undergoing a rather dramatictransformation in recent #ears connected to political transition in the countr#! /.*he replacement of Muslim militar# leaders with non+Muslims in the nationalgoernment inspired efforts to 4&slamicie5 northern states with large Muslim

populations! *he primar# manifestation of this has been the enforcement ofsharia!

&n Digeria, the issue of domestic iolence is bound up in cultural notionsof masculine priilege, which conseratie interpretations ofshariareinforce!/FOne stud# found that 31 percent of women hae been subected to ph#sical abuseat least once in their lies!/H stud# sure#ing rates of domestic iolence between1-/2 and 1-// found an upsurge in the practice, with a total of 1220 womenreporting batter# oer this period!//:ut it is unclear whether this indicates anincrease in incidents of iolence or womens willingness to report it! 1--H stud#found that domestic iolence is common in all regions and spans all social classesand groups!/-

'nternational Persective, ed!, Ealentine Moghadam %:oulder, $OI (estiew ress, 1--?'!/. "ee #esha &mam, 4olitics, &slam, and (omen in 7ano, Dorthern Digeria,5 in'dentity Politics and &omen, ed! Moghadam, op! cit!

/F"ee Milkah Alam :ukurta, 4attern of (ife buse within amilies in Kola damawa"tate Dsukka,5 M thesis, ;epartment of Eocational *eacher Aducation, Cniersit# of Digeria,

Doember 1--/) eter $hukwama Aeah, 4"ocialiation, "ocial $lass and Marital EiolenceI "tud# of (ife buse in Dsukka Jocal Boernment rea, Anugu "tate Dsukka,5 M thesis,;epartment of "ociolog#Gnthropolog#, Cniersit# of Digeria, 1--3) lbert Olawale, &omen andViolence in /ano i%eria%"pectrum :ooks, Jtd!, 1--F'!/H

O! Oduinrin, 4(ife battering in Digeria,5=ournal o! 1ynecolo%y and 3bstetrics, no! ?1%1--3', cited in #he &orlds &omen :;;;, o. cit!, p! 1.?!

// ! Omorodion, 4*he "ocial $ontext of (ife :attering,5 in >nequal $i%hts(

Discriminatory ,aws and Practices a%ainst &omen in i%eria, ed!, Losephine Affah et al!, 1--.!=DBODAI need full cite>


31/41

On the national leel, the Digerian constitution guarantees e6ual rights toall citiens, including clauses that bar discrimination on the basis of sex! Digeria

has ratified, without an# reserations, $A;( and other human rightsinstruments that guarantee womens rights! 8oweer, the goernment has notinstituted laws explicitl# prohibiting domestic iolence, and officials generall#tend to be unwilling to enforce criminal laws in cases of intra+famil# iolence!=BA* RAARAD$A ROM DBODA>

Sharia and the Dorthern Digerian enal $ode reinforce the permissibilit#of domestic iolence and the legal impunit# of perpetratorsI "ection .. of theenal $ode proides that

wife beating is permitted in so far as it does not amount to grieousinur# ask=women who report iolence> if the# are submissie to their husbands, orif the# think their husbands are in a position to reproe them! (henanswers to these 6uestions are not straightforward or forthcoming, =theofficers> ask the couple to settle their differences 4in bed!5-1

Official and popular tolerance for domestic iolence in Digeria has beenbolstered b# the 4&slamiation5 taking place in Muslim+maorit# states in thecountr#! *he use of regional goernmental power to enforceshariain stateswhere it has been instituted makes it more difficult for womens rights adocatesto use national legislation as leerage) the er# process of &slamiation has been a

reoinder to a loss of power on a national leel, and the promotion of regionalautonom# has been a means of caring out a domain of control!

ationali8ation(n# state that defines the official religion as &slam anddraws upon religious law and urisprudence for its legislation and policies, butdoes not derie or base its ownauthorit# exclusiel# onshariawould fall withinthis categor#! :# linking the power of the state to the application and enforcementof religious law, religion is 4nationalied5 under the auspices of state institutions!

/- Mora#o tinmo, 4"ociocultural &mplications of (ife :eating in Digeria,5 Men&omen and Violence%$O;A"R& Bender &nstitute, 1--H'!

-0

$ited in Affah, >nequal $i%hts!-1tinmo, 4"ociocultural &mplications of (ife :eating in Digeria!5


32/41

*his includes much of the rab world and some countries in frica and sia withMuslim maorities!

:lurring boundaries between religion and state power has been pursued inthe interest of consolidating a national communit#, and as a means for states to

promote their own legitimac# among sectors of societ# who are inclined to see acommitment to &slam as a marker of 4good goernment5 in the format of an4&slamic social contract!5 *his blurring leaes open some space for debate oerthe relationship betweenshariaand other bodies of law! On matters of womensrights in general and domestic iolence in particular, there is room for maneuerto seek state interention and legal reform through reference to criminal andconstitutional laws! 8oweer, there is also room for conseratie constituencies tomobilie pressure on the state to enforceshariain a conseratie manner.ndwhen faced with critics pressing for liberal reforms, the state can resort to

repression on the grounds that it has both the prerogatie and the dut# to 4defend5&slam as an integral part of the national character!

Ag#pt proides a good example of all of these aspects and d#namics!-2&nprinciple, Ag#ptian law, including the constitution, proides women with a rightto e6ualit#! 8oweer, in 1-/1, under pressure from &slamists, the Ag#ptianconstitution was amended to proide that the principles ofshariawouldconstitute the main source of legislation! *he "upreme $onstitutional $ourt has

been gien the task of determining whether new legislation conforms to theseprinciples! &n practice, gien the conseratie wa#s in whichshariais interpretedand applied to maintain male authorit# and female obedience, womens rightscontinue to be lesser than those of men and their ulnerabilit# to iolence isimplicitl# sanctioned b# the state!

*he issue of diorce is particularl# illuminating of Ag#ptian womenslimited rights and their ulnerabilit# to iolence! Ag#ptian courts follow a numberof principles that function like legall# binding precedents to bolster the negatieimplications of womens restricted right to diorce, een in cases of iolence! orexample, according to rinciple 22, 4a husbands inappropriate conduct is notconsidered =b# itself> grounds for diorce!5-3rinciple .- states that 4a wifesreturn back to the home after haing been harmed means that life could continue

between them, which does not constitute grounds for diorce later!5-?:eingbeaten or hurt b# her husband does not necessaril# constitute grounds for a wife to

leae the home! &nstead, her option is to seek relief from a udge! Moreoer, eenif she pursues such a course, in the interim she must not refuse to be obedient toher husband while she continues to cohabit the marital home! &f the udge finds

-2

or an example of a states attack on domestic critics of sharia, see the discussion ofthe Ag#ptian goernments treatment of the rab (omens "olidarit# ssociation, in Ma#er,4$ultural articularism,5 pp! 1/0+/1!-3

Marl#n *adross, $i%htless &omen 0eartless Men( *%ytian &omen and Domestic

Violence%$airoI *he Jegal Research and Resource $enter for 8uman Rights, 1--/', p! 1/!-?*adross,$i%htless &omen 0eartless Men, p! 1/!


33/41

sufficient proof of harm, and if he is unable to reconcile the couple, he can grant adiorce!-.

side from the difficulties in meeting burdens of proof and the generalreluctance on the part of udges to grant women a diorce, other factors impedewomen from pursuing this option! Often, womens families would not supportsuch a decision or take them in, and establishing separate homes for themseles is

both sociall# unacceptable and economicall# unfeasible for the ast maorit#!nother significant deterrent is the likelihood that women who seek diorce willlose custod# oer their children! nd een if women do successfull# obtain adiorce, diorcees become subect to the authorit# of another male guardian,whether it is a

Documents

Domestic Violence and Shariah