By Javed Anand
August 26, 2017
The contrast between the Ulema in India and in Tunisia could not be greater. While in India they are finding it difficult to digest even the declaration of instant triple talaq as invalid, their counterpart in Tunisia are miles ahead on the road to reform.
On August 22, the Supreme Court by a 3:2 majority decision “set aside” the practice of instant triple Talaq among Indian Muslims on the ground that it was “un-Quranic”/“un-Constitutional”. In response, Maulana Mehmood Madni, general secretary of the Jamiat ul Ulema-e-Hind, has invited contempt of court and has virtually incited Muslims to continue with the now prohibited practice.
No matter what the Supreme Court might rule, instant triple Talaq remains valid in Islam, Madni has argued. In Tunisia, on the other hand, Talaq (divorce) has been prohibited except through the courts since the passage of the Code of Personal Status, 1956. The same Code also banned polygamy unconditionally.
Now, barely a week before the SC verdict in India, on the occasion of Tunisia’s National Women’s Day (August 13), the country’s 90-year-old President, Beji Caid Essebsi has announced the creation of a committee to look into proposals including women marrying non-Muslim men, as well as equal inheritance rights for women.
The declaration is astounding for more than one reason. Given that the 2014 Constitution of Tunisia declares Islam as the religion of the country imagine its head of state proposing a reform that a vast majority of Muslims across the globe would consider to be contrary to the explicit injunctions of the Quran. From the perspective of the Indian ulema this is nothing short of heresy.
Even more astonishing is the fact that Tunisia’s Islamic scholars at Diwan al-Ifta have backed the move. According to them, Essebsi's proposals "support the status of women and guarantee and implement the principle of equality between men and women in the rights and duties called for by Islam, as well as the international conventions ratified by the Tunisian state".
Prima facie, the Quranic verses are unambiguous on both the issue of equal inheritance rights and the right of Muslim women to marry non-Muslim men.
“Allah charges you in regard with your children: a son’s share is equal to the share of two daughters; if the [children] are [only] daughters and two or more, their share is two thirds of the legacy, and if there is only one daughter, her share is half [of the legacy]; and each of the parents inherit one-sixth of the legacy if the deceased had children, and if the deceased had no children and the parents are the only heirs, the mother inherits one-third; if the deceased had brothers, the mother inherits one-sixth; [all this is] after executing the will and settling the debts of the deceased… This is Allah’s injunction; surely Allah is All-knowing, All-wise.” (4:11).
As an Islamic portal sums it up, sons inherit twice that of daughters, brothers twice that of sisters, and husbands inherit twice that of wives, except regarding the father and mother of the deceased: if they are living at the time of their child’s death, each equally receives one sixth of the deceased’s legacy.
On Muslims Marrying Non-Muslims:
A Quranic verse clearly prohibits both Muslim men and women from marrying infidels or polytheists: “Do not marry unbelieving women (idolaters), until they believe… Nor marry (your girls) to unbelievers until they believe… (2:221)
Another Quranic verse makes it lawful for Muslim men to marry Jewish and Christian women: “(Lawful unto you in marriage) are (not only) chaste women who are believers, but chaste women among the People of the Book, revealed before your time (5:5).
But there is no corresponding Quranic verse which says anything about Muslim women marrying Jewish or Christian men. This is interpreted by the orthodoxy to mean that Muslim women are only permitted to marry Muslim men.
Not surprisingly, Egypt’s Al Azhar University – among the oldest and most renowned centres of Islamic learning – has reacted sharply to the proposal mooted by the Tunisian President.
A statement issued by Al Azhar stated that the Quranic texts discussing inheritance leave no room for alternative interpretations. “These teachings leave no space for uninformed analyses or theories that contradict Islamic edicts. It provokes Muslims that hold onto their religion with a firm hand and shakes the stable foundation of the Muslim community.”
Abbas Shouman, the deputy head of Al-Azhar, expressed his institution’s discontent, saying that Essebsi’s decision does away with religion rather than renewing it. He denounced the clerics supporting Tunisia’s line of thought as “unscholarly,” accusing them of being ignorant of the blatancy of certain Islamic rulings “that do not allow for independent reasoning and do not change with time or space.”
For Shouman, Muslim women marrying non-Muslim men defy the purpose of marriage in Islam.
Tunisia’s ruling Nidaa Tounis was quick to rebuff Al Azhar. "Essebi's proposals are of interest to the Tunisian community only, and no one has the right to engage in this debate," Burhan Besis, an official from the ruling party said.
More interesting in an interview to the Egyptian Al-Watan newspaper a Tunisian mufti endorsed the Tunisian president’s remarks and defended them on the basis that “God’s ruling on earthly matters” could and should be reinterpreted to stay relevant.
Islamic feminist Omaima Abou Bakr notes that discussing equality in inheritance or marriage of Muslim women to non-Muslim men “is not against Islam, but rather against the classic interpretations of Islam.” In support of her contention, she points out that “there have been contemporary readings of Islam that discuss these issues and offer new progressive readings and solutions outside the scope of scholars and clerics.”
She cites the recent writings of Tariq Ramadan, a professor of contemporary Islamic studies in the Faculty of Oriental Studies at Oxford’s St Antony’s College and Khaled Aboul Fadl, the chair of the Islamic Studies Program at the University of California. The progressive readings and solutions, however, are anathema to the orthodoxy at Al Azhar and to the Ulema in India.
Meanwhile, Tunisia’s Islamists are finding themselves in a Catch-22 situation. The country’s Islamist Ennahda party has traditionally drawn its support from the country’s rural areas and working-class urban belts around the main cities. In recent years, especially after the ‘Arab Spring’, the party has been trying hard to expand their reach in urban areas and elite constituencies.
The drive to win new adherents has forced the Ennahda to take increasingly “modern” positions on gender issues, among other things. That is why it has had to come around to voicing support the over six-decade-old ban on polygamy. More recently it has endorsed a new law to check violence against women.
But now the Women’s Day proposal of the President has put the party in a real bind. By supporting the “modernists” the Ennahda stands to lose its traditional base. Opposing it will mean a major setback vis-à-vis the new constituency it has been working hard to cultivate.
The 2014 Tunisian Constitution has a novel provision that while Islam would be the religion of the country, Tunisia would remain a civil state. In the issue of reform of family laws in Muslim-majority countries, the Code of Personal Status is seen as “a beacon and a source of hope for other women’s movements and governments”.