Paper Outline

I. Introduction:

Progression of legal reasoning:

o Quran
o Hadith speech and conversation of Muhammad and his early followers tends to be much more
specific
o Sunna custom and tradition (mostly of Medina)
o Ijma (Consensus) consensus of the people of Medina what they do is probably reflective of what
was done in Muhammads time
o Qiyas (reasoning by analogy) first human input use when have two contradictory verses
o Ijtihad individual reasoning been somewhat replaced by Taqlid, which is imitation of what was
decided in the past
o Sharia religious Islamic law
What the Quran actually says about polygamy If you fear that you cannot deal justly with the orphans,
then marry such of the women as appeal to you: two, three, or four; but, if you fear that you cannot be
equitable, then one, or what your right hand owns (verse 4:3)
Will be examining several Muslim countries reforms concerning both polygamy and the womans right to
divorce to determine general trends that tend to favor reform first will present the reforms, and then will
discuss how they came about later

II. Case Studies:

Afghanistan
o Reign of King Aman Allah attempted various reforms, including abolition of polygamy (believed it
was not possible to treat all wives equally); however, representatives wouldnt allow it, however, do
allow women to petition for divorce if she felt she was not treated fairly upon her husband taking
another wife (Malikyar, 393)
o Civil Law of 1977 increased the reasons for why a wife may divorce husbands failure to provide
maintenance; husbands dangerous or contagious disease; desertion, disappearance or imprisonment
of husband; maltreatment (taken from Maliki school) (Malikyar 393)
o 1979 Soviet invasion led to jihad many reforms set back. For example, polygamy was
encouraged since Muslims were at war and the widows needed taking care of (Malikyar 395)
o 1996 Taliban take over
Egypt
o Law of Personal Status of 1929 basic guideline for personal law in Egypt (Mashhour 579)
Also lists the same 4 grounds for divorce as Afghanistan
o Personal Status Amendment Law of 1985 allows for a woman to divorce upon learning that he was
entering into another marriage (Mashhour 580)
o 2000 new law allowed for a woman to obtain a divorce through the courts without the consent of
the husband if she agreed to pay back the dowry and the rest of her material rights (Mashhour 583)
o Stimulus for many of the reforms came from Turkey (Esposito 53)
Jordan
o Law of Personal Status (1976) no restrictions on polygamy, but a wife can put in the marriage
contract that she can divorce the husband if he takes another wife (Marcotte, 160)
o Attempts at introducing reforms in 2003 failed (included allowing a women to divorce on demand
with some provisions, that she must return her dowry, undergo a 30 day period of reconciliation and

waive financial obligations listed in marriage contract) (Clark/Young 337) reforms did not succeed
reasons to be discussed later
Malaysia
o 1970s model Islamic Family Law Act drafted because each state had its own family law, which
were often contradictory concerning control of polygamy, etc (Siraj 565)
o Kelantan Islamic Family Law Enactment requires husband to obtain court permission before
taking another wife wife is supposed to be informed that he might take another and consents to it.
Husband is also supposed to show he can support two wives, but in practice, as long as the husband
says he can, the court accepts that he can (Siraj 566)
Also, usually as long as the husband says that his wife consents, he is believed to be telling
the truth (Siraj 566)
o Very difficult for a wife to get a divorce, usually must pay husband is financially unable to do so
(Siraj 568)
Morocco
o 1958 Code du Statut Personnel polygamy not allowed if any fear that there were be unequal
treatment of the wives follows Maliki school of law (Marcotte 158)
1993 also added another requirement that the husband notify the first wife of his desire to
marry again must also tell the new wife of his other wife
Women can also put in marriage contract that the husband cannot marry again
Women should give consent to be married and sign contract (Moghadam 13)
o 2003 king Mohammed VI announced new family code establishes idea of gender equality as well
as replaces repudiation with consensual divorce
o Joins Tunisia/Turkey as being one of the only countries in which the husband and wife share
responsibility for the family (Moghadam 14)
o 2003 reforms included stricter regulations regarding polygamy, allowing women to engage in a
marriage contract herself rather than through a male representative, allowing both men and women
to initiate divorce (Clark/Young 335)
Pakistan
o 1939 Dissolution of Muslim Marriages Act similar to Egypt, added reasons why a wife could
obtain a divorce desertion, failure to maintain, perform marital obligations, severe or chronic
(physical or mental) defects, and cruelty/maltreatment (Esposito 76)
o Polygamy legal, though must be deemed necessary and just by the court and requires written
permission of the first wife (Marcotte, 158)
o August 1955 Commission on Marriage and Family Laws was established to review Muslim family
law (Esposito 81)
o March 1961 Muslim Family Laws Ordinance of 1961 (Esposito 81)
Created an Arbitration Council to handle polygamy
Married man must get permission before obtaining a second wife (Esposito 82) and
state reasons for the proposed marriage and the attitudes of the wife or wives toward
the new marriage
Also used the Arbitration Council for divorce however punishment is lenient, and thus
often times divorces occur regardless (Esposito 83)
o New government in the 1970s has been reviewing some of these reforms, and some have been
repealed
Saudi Arabia
o Under Hanbali law, a woman is never allowed to end marriage contract needs a guardian to act on
her behalf (Almihdar 3)
o However, can add stipulations to the marriage contract, including that the husband is not allowed to
take a second wife

o Can divorce for physical/mental defects of husband, failure to pay maintenance, absence of the
husband for 6 months without cause, failure of husband to observe a stipulation in marriage contract
(Almihdar 4) also recently has accepted another reason recognized by Maliki school harm
Tunisia
o 1956 after being under French rule, Tunisia had become exposed to the differences between
Western culture and Islam nationalists believed that the backwardness of Muslim societies was
due to its inability to evolve and to develop with the modern era and that there was no inherent
contradiction between Islam as a religion and the modern world (Mashhour 584)
o Polygamy is banned Tunisian Code of Personal Statues Habib Bourgiba (ruler) outlawed
because he didnt think that equal treatment of wives was possible (technically called the Code du
Statut Personnel)
o Women have equal rights to men regarding divorce however, reconciliation efforts are obligatory
o 1993 Tunisian Code of Nationality
Turkey
o Tanzimat first attempt to reform the Ottoman state also the first attempt to modernize and codify
part of Islamic law (Marcotte, 154)
o Mejelle partial codification of Islamic law although the authors argued they solely used the
Hanafi Islamic school, they in fact incorporated elements from the other three Sunni schools as well
(Marcotte, 154)
o Neither Mejelle nor Tanzimat included reforms in family law (Marcotte, 154)
o 1915 and 1917 Ottoman family laws
o Ataturk adopted a slightly modified Swiss Civil Code of Law which allowed equality of men and
women with regards to divorce and child custody
Also, therefore, included an abolition of polygamy Turkish Civil Code (1926)

III. General Themes

Use of the 4 Schools
o In the ninth century, many schools of Islamic law existed, however, by the 10 th century four schools
came to dominate Hanafi, Maliki, Shafi, Hanbali) - all had their own law regarding polygamy and
divorce
o Although each country is associated with one particular school, see that as reforms come about, so
does the need to look at other schools for validation
o The two most borrowed are Maliki four reasons for divorce and the Hanbali allows to put
stipulations in the marriage contract
o Countries that added Maliki reasons: Afghanistan (Hanafi) Egypt (Hanafi) Saudi Arabia (Hanbali)
o Countries that added Hanbali stipulations in marriage contract: Egypt, Pakistan, Jordan (Maliki),
Morocco (Maliki)
Codification
o Reforms began with the codification of the laws
o Codification is a step in the right direction in the sense that it shows an effort to make women more
aware of what rights they do have (Siraj 565)
o Also provides a framework from which to argue for reform
o Every country now has a law code concerning family rights, even if it includes very few reforms
o First step in each country:
Afghanistan first attempts to codify law occurred under Amir Abd al-Rahman Khans
reign from 1880-1901 (Malikyar 391)
Egypt codification occurred in 1920s (Masshour 580)
Malaysia what happened in 1970s (Siraj 565)
Pakistan need to codify after British occupation

Tunisia Code of Personal Status

Turkey Tanzimat first attempt to modernize and codify part of Islamic law
Western/Outside Influences
o Can refer to the influence of an actual colonial power or just contacts with the west
o Positive Examples:
Pakistan/Bangladesh
Part of legacy of not adhering strictly to what the documents said came from the fact
that British served as jurists until the last 19th century often went by British law
instead of Islamic law, for example (Esposito 123)
Turkey
Turkish Civil Code developed under Ataturk was directly inspired by the Swiss Civil
Code of Law (most direct example of Western influence) allowed equality of men
and women with regards to divorce/child custody, also included abolition of
polygamy (Marcotte 154)
Turkey wanted to modernize in order to counteract judgment by Westerners that they
were inferior or backward (Andolu-Okur 24)
Tunisia
1956 - after being under French rule, Tunisia had become exposed to the differences
between Western culture and Islam nationalists believed that the backwardness of
Muslim societies was due to its inability to evolve and to develop with the modern era
and that there was no inherent contradiction between Islam as a religion and the
modern world (Mashhour 584)
Part of the reason the reforms in the 1950s were possible was because the new
modernizing government faced no challenges at the moment it took power (Charrad)
Appearance of two societies in Tunisia upper class, Westernized elite and lower
class which stills holds onto many Islamic practices (Wing/Kassim)
Egypt
Stimulus of reforms came from Turkey (Esposito 62)
o Negative Examples:
We find in Muslim and other developing societies, which were once under western colonial
rule, a common post-colonial phenomenon of the reassertion of an authentic cultural
identity (Othman 343)
Afghanistan
With Soviet influence, many of the reforms were reverted as Afghanis tried to
recapture their Islamic heritage post Taliban??
Jordan
Reforms presented by King Abdullah based on arguments of equality and womens
rights mirrored too much the rhetoric of the West (Clark/Young 343)
Alliance with Israel which King Hussein (Abdullahs father) signed in 1990s led to
increased Islamist opposition, which continued during Abdullahs reign, however,
Abdullah has been much less lenient with the opposition than was his father
(Clark/Young 339)
Malaysia
Replacing of Malay customs with Arabic Islam (Othman 343)
Role of Courts
o Judicial Activism seen in Pakistan/Bangladesh
Personal law in South Asia almost completely uncodified, leaving it open to judicial
interpretation (Hoque/Khan 217)

Post-independent Pakistani judges began seeing the law as a changing force and looked to all
the schools when determining decisions (Hoque/Khan 211)
Court said if there is no clear rule of decision in Quranic and traditional textsa court may
resort to private reasoning (quoted in Esposito 124)
o Also plays a key role in reforms as almost all included in divorce proceedings or desire for husband
to take another wife
Pakistan polygamy had to deemed necessary and just by the court to require written
permission of first wife (Marcotte 158)
Divorces presided over by the courts (Afghanistan, Egypt, Malaysia, Morocco, Tunisia,
Saudi Arabia, Turkey)
Play a role in whether or not a husband can take another wife (Egypt, Morocco, Pakistan
MORE??)
Use of Islamic Rhetoric
o All reforms explained using Islamic rhetoric
Afghanistan Reforms instituted by Khan were said not to run in opposition to sharia, but to
actual put into place a method in which to enforce sharia
Jordan failure to use Islamic rhetoric prompted failure
Malaysia
Morocco King referenced the sources and the example of Mohammed in his speech
Pakistan (look at above quote by courts) looked at all the schools
Saudi Arabia merely borrowed from another school
Tunisia King argued that being just and fair to all wives was basically impossible (Charrad)
Does not see its reforms as part of secularization, but rather modernization and relies
on ijtihad (Wing/Kassim)
o Increasingly reliance on Itjihad (relates back to court)
Role of Womens Groups
o Played little role in reforms prior to 1990s
o Will most likely play an increasing role in the future
o Women cannot reject sharia as it would be seen as rejecting their heritage
o Egypt Womens groups trying, and have tried but have been unsuccessful (Esposito 58-60)
o Jordan NGOs highly regulated in Jordan, making it difficult for women to form them or for
womens groups to work with them structure provides the government an indirect form of control
over the activities of other NGOs (Clark/Young 342)
o Malaysia
o Morocco womens rights groups worked loosely with human rights movements and leftists
political parties (Clark/Young 337)
o Pakistan women generally silenced, making it difficult for womens groups nowadays
o Saudi Arabia
o Tunisia 1950s was not seen as a womens movement, but as a general movement in modernization.
However, worth noting that reforms introduced in 1990s (including matrilineal descent that a
mother can pass her nationality onto her son challenges the assumption of a patrilineal society)
(Charrad)
Women in 1950s were promoting a nationalist agenda rather than a feminist one (Charrad)
once Tunisia became identified with woman friendly legislation earlier than other countries
in the Arab-Islamic world, it became a matter of national pride and international recognition
to continue on that path (Charrad)
o Turkey some womens group
Divide Between Theory and Practice
o In every country, not all the reforms are enforced

o Malaysia
o Pakistan Arbitration Council often did not have very strict punishments, and so divorces occurred
regardless of whether or not they went in front of the council
o Tunisia divide in society