Gender Equality in Islam - Reconciling traditional Islamic laws with the growing challenges of modernity on gender discriminatory laws.

Muslim Personal Law
Dr. Zubair Abbasi
22nd November 2015
Research Essay – First Draft
Gender Equality in Islam:
Reconciling traditional Islamic laws with the growing challenges
of modernity on gender discriminatory laws.
Syed Ahmad Omer Akif
Meha Pumbay

Abstract
The rise of globalization and secular thought in modern times have reopened many
debates challenging the relevance of religious law and its compatibility with universal
notions of morality and equality. The present essay explores the issue of gender equality
and discrimination in Islamic legal tradition by comparing perspectives of various
scholars, court judgments, historical developments and cultural practices. The main
argument of this essay is that in its 1400 year history Islamic legal system has undergone
an evolutionary process giving rise to numerous new interpretations, however, an
important distinction has to be made between the law of primary sources (Quran and
Sunnah), the opinion of jurists & scholars and customary law. While the validity of law
derived from the Qur’an and Sunnah remains eternal and infallible, other sources can
lead to arbitrary decisions and incorrect application of Islamic law. Such an exercise can
result in the justification of gender discriminatory laws that are in contravention to the
fundamentals of the religion itself.
1 Introduction
One of the most fundamental tenets of the Muslim creed is that God has created all human
beings equal to each other, and they can be only superior to one another in terms of their
piety and actions. This idea of parity between the genders is laid down by the Holy Qur’an
itself in the following verse: "For Muslim men and women, for believing men and women,
for devout men and women, for true men and women, for men and women who are
patient and constant, for men and women who humble themselves, for men and women
who give in charity, for men and women who fast, for men and women who guard their

chastity, and for men and women who engage much in Allah's praise, for them has Allah
prepared forgiveness and great reward." [33:35]. This present essay will attempt to study
Islamic legal discourse on gender-based issues by first understanding the Islamic position
on gender equality then applying this standard in the context of multiple domains of
marriage including polygamy, divorce, inheritance and testimony before finally
attempting to reach a clear verdict on the matter.
Adding to the earlier Qur’anic verse, there is a strong contention by adherents and
scholars alike that values and principles of Islam are inherently gender neutral. However,
it is an admitted fact that due to historically changing contexts, social structures, societal
norms and cultural conventions certain facets of the law have treated genders unequally
and discriminatorily. This apparent contradiction and lack of consistency between
scripture and practice no doubt exists to some extent in the present day. However, these
double standards that do exist in the present day Islamic Law do not mean that Islam
preaches that women are subordinates to men. In Islamic Law, justice for all is the
principle, gender equality is not. This essay aims to prove that the original sources of law
need to be interpreted in light of the context that they were revealed in and the societal
corrections that they intended to make. Many scholars of Islam like Javed Ahmad
Ghamdi, Dr. Jamal Badawi, Dr. Fazlur Rahman and Wael Hallaq are of this belief.
In order to facilitate a fair critique of the alleged gender discriminatory laws and
rights in classical and modern Islamic legal tradition, it is absolutely necessary to
understand albeit briefly what is meant by gender equality, in general, layman terms. This
has to be juxtaposed with the Islamic notion of gender egalitarianism and its divergence
from the commonly understood definition for an accurate analysis of gender rights in

Islam. The purpose of Gender equality as it is commonly conceived in the popular
imagination, also under the Universal declaration of human rights, is to create equality
among genders in law and in social situations1. Under such a conception, equality is
implied as absolute in all matters which is problematic primarily for a reason which is
termed as the paradox of equality by Professor Anwer Emon. The Paradox of equality
basically states that in pursuance of equality, people who are similarly situated have to be
dealt similarly2. Conversely, people who are differently situated have to be treated
differently. The main argument that stems out of this proposition is that often courts and
judges are required to legally differentiate between genders in order to uphold principles
of justice and fairness. To this end, gender differentiation and gender discrimination are
viewed separately where the former finds credence in scripture and tradition while the
latter notion is thoroughly invalidated due to a lack of precedence and of its blatant
contravention to the essence of the traditional Islamic law.
Any analysis or criticism of Islamic legal thought pertaining to gender issues would
be fruitless and intellectually dishonest if made outside the context of differentiated
equality as mentioned above. In identifying the ‘Islamic’ perspective of almost anything,
eminent Islamic scholar, Professor Jamal Badawi emphasizes greatly on the importance
of making a distinction between primary sources (Qur’an and Sunnah) and the legal
opinion of scholars, jurists, judges whose views may vary considerably with changing
circumstances and customs3. The point to be noted is that the second type of sources is
1
"OSAGI Gender Mainstreaming - Concepts and Definitions." UN News Center. Accessed November 22,
2015. http://www.un.org/womenwatch/osagi/conceptsandefinitions.htm.
2
Emon, Anver. "The Paradox of Equality and the Politics of Difference: Gender Equality, Islamic Law, and
the Modern Muslim State." Social Sciences Research Network, 2011. Accessed November 22, 2015.
3
Badawi, Jamal. "Gender Equity in Islam." Accessed November 22, 2015.
http://www.sultan.org/books/gender_equity_in_islam.pdf.

not absolute or infallible and can be subject to change with the emergence of new
interpretations in modern times.
2 Type of legal domains contended under gender equality debate
Many questions and criticism about the claim of gender-based equity in Islam
come to the forefront in numerous legal disputes. These disputes are usually related to
matters of marriage, divorce, inheritance, testimony along with fundamental human
rights issues among others.
Marriage
In an article, (pg 456) Dr. Fazlur Rahman writes that the Quran intended for
husband and wife to be equals in marriage4. This idea springs from the very outset when
the marriage is being conceived. Contrary to the misguided patriarchal notion that in
Islam, marriages are usually arranged by the family and the bride has limited or no say
regarding the matter. This view was categorically negated in Allah Nawaz vs Station
House Officer where a marriage consented by a 16-year-old girl was declared valid by the
court in spite of her guardian’s opposition to it5. The mere fact that the girl had entered
into marriage on her own accord warranted the court to decide in her favor. This case, in
particular, shows that Islamic law has high regard for the rights of minor girls and their
autonomy in marrying whoever they wish. Furthermore, Dr. Rahman and Eminent
Muslim scholar Javed Ghamidi argue that some of the apparently discriminatory
4
Rahman, F, 'A Survey of Modernization of Muslim Family Law' (1980) 11 International Journal of
Middle East Studies 451.
5
Allah Nawaz vs Station House Officer, Mahmood Kot District, Muzaffargarh, P L D 2013 Lahore 243

treatment against females in marriage arises out of the nature of the relationship between
a husband and a wife rather than their respective gender6. They state that the Qur’an
assigns higher authority to the husband as the head of the institution of a family whose
primary role is being the provider of the family7. Juxtapose this with the idea that upholds
the family and marriage as sacred contracts which need represent the values of an Islamic
society at the lowest level. This proposition unfortunately, has led to many Islamic
nations, like Tunisia and Indonesia, to advance an interpretation that demands complete
obedience from wives to the husbands and thus being their subordinates in all domestic
matters. The Quran, whose message is presented as eternal, greatly comments on the
realities of the time that it was revealed in, where men earned and women did not. The
actual Islamic principle can be argued as higher respect for the main earner of the family.
According to this reasoning, in cases where the man and woman earn approximately equal
amounts, they can both be considered to be equal in respect and owe equal obedience to
each other.
Polygamy
Dr. Fazlur Rahman also posits that the Islamic States have repeatedly tried to limit the
practice of Polygamy by imposing restrictions and discouraging it8. Many countries like
Egypt and Pakistan, have regulated multiple marriages by making the consent of first wife
6
7
"Islam and Women: Misconceptions and Misperceptions." Javed Ahmad Ghamdi. February 1, 2005.
Accessed November 22, 2015. http://www.javedahmadghamidi.com/renaissance/view/islam-and-
women-misconceptions-and-misperceptions-part-1-4.
8

a requirement9. The validity of this claim can be exemplified in the case Raja Muhammad
Azram vs Jamila Banaras, 2011 YLR 1595, where the court held a man liable for
contracting a second marriage without informing or obtaining the consent of his existing
wife10. The judgment was marked by a support for the wellbeing and rights of the wife,
practically acting as a hindrance to polygamous marriages. The same sentiment is
reflected in section 6 of the Muslim Family Law Ordinance 1961 which discourages
polygamy in strong words where it makes it a requirement to act in accordance with the
will of the wife and the arbitration council before a second marriage can be contracted
successfully11. According to Muslim scholar Javed Ahmad Ghamidi, Shariah law does not
actively allow, encourage, or prohibit polygamy but it merely advances an existent trend
prevalent in the Arab society at the time12. He argues that the much-quoted ayah of the
Qur’an, “And if you fear that you will not deal justly with the orphan girls, then marry
those that please you of [other] women, two or three or four. But if you fear that you will
not be just, then [marry only] one or those your right hand possesses. That is more
suitable that you may not incline [to injustice; (4:3)” was revealed in the historical
context of a growing number of unsheltered orphans and widows in the aftermath of the
Battle of Uhad. In order to help these people in the crisis, Muslim men were encouraged
to take these women into their protection lawfully by marrying them. Furthermore,
9
Mashhour, Amira. "Islamic Law And Gender Equality: Could There Be A Common Ground?: A Study Of
Divorce And Polygamy In Sharia Law And Contemporary Legislation In Tunisia And Egypt." Human
Rights Quarterly: 562-96.
10
Raja Muhammad Azram vs Jamila Banaras, 2011 YLR 1595
11
"The Punjab Commission On The Status Of Women." Muslim Family Laws Ordinance, 1961, Ordinance
VIII. Accessed November 22, 2015. http://pcsw.punjab.gov.pk/muslim_family_laws.
12

Ghamidi argues that since the Qur’an does not place any restrictions or strict impositions
regarding polygamy in general like it does on many other issues such as the consumption
of alcohol, adultery etc: then it (polygamy) may be regulated or even banned by legislators
when societal values can no longer accommodate such a practice. It can also be argued
that Islam emphatically discourages polygamy on the pretext of justice, “And you will
never be able to be equal [in feeling] between wives, even if you should strive [to do so].”
(4:129). In these verses, first, the Quran allows men to marry up to four women on the
condition that he can treat them equally, and the Quran further adds that it is impossible
to treat women equally. As identified by Dr. Rahman, the two main ways in which Muslim
countries restrict polygamy is by maintaining that a husband must be economically strong
enough to support multiple wives and that he must obtain the consent of the first wife to
undergo a subsequent marriage13. Dr. Rahman finds both these reasons quite unethical
as the first makes polygamy legal for the rich and illegal for the poor, reducing marriage
to a status similar to legalized prostitution. The second puts a lot of mental and emotional
pressure on the existing wife as it cannot be easy for her to agree to share her husband
with another woman.
Divorce
Questions of gender disparity are not limited to obligations and rights during the
marriage but also applicable to the annulment of marriage or divorce. The most ardent
critics of Islamic legal system specifically point towards the unfair practice of the
unilateral right granted to husbands to divorce their wives whenever and however they
13

choose. This criticism is not entirely unqualified and is in fact supported by centuries of
tradition and custom which provides the right to initiate divorce exclusively to males. This
right is usually construed to be unqualified and unrestricted. That being said, this
contention is not entirely legitimate. While it is true that the right to divorce rests with
the husband by default, the wife has the option to ask for khula or judicial separation
which compensates her to some extent. Secondly, the claim that husband may divorce his
wife on completely arbitrary grounds does not stand as an unfettered right either. This is
demonstrated by the judgment in Mariyam Akhter & anr vs Petitioners Wazir Mohd
which laid down framework including the correct procedure and reasonableness of causes
that may justify the exercise of a unilateral divorce14. By relying on Qur’anic dictates, the
court argued that a husband cannot capriciously divorce his wife and that he needs to
make all possible attempts at reconciliation before executing a divorce for only a
reasonable cause.
Inheritance
In pre-Islamic Arab society, women were not given any property or inheritance as they
were themselves treated as transferable property. After the emergence of Islam in Arabia,
not less than revolutionary reforms were enacted to uplift the social and financial
conditions of women as compared to earlier times. However, even today in many parts of
the Muslim world, the outlook for women isn’t a lot better than it was during the pre-
Islam Arabian society. The perception that women are inherently inferior to men has
14
Mariyam Akhter & anr vs Petitioners Wazir Mohd (2005)
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Rev No. 51 OF 2005 AND Cr M P No. 15 OF
2005

adversely affected their inheritance shares severely in many tribal societies, in places like
Nigeria and rural Pakistan. Professor Jaiyeola Mulikat Bolaji comparatively studied these
societies in Nigeria where customary laws greatly undermined the traditional Islamic
inheritance law15. Under customary law of inheritance of many ethnic groups in Nigeria,
a widow does not have the right to inherit estates of her late husband and even the shares
of daughters as compared those given to sons are quite insignificant. In Pakistan, the
deep-rooted patriarchal system denies women their due right of inheritance,
consequently curbing their socio-economic and political empowerment16. Owing to
customary practices and compulsions, many women are either forced to withdraw their
right to inheritance in favor of male counterparts. In order to resolve such a dilemma, as
suggested by Professor Badawi, distinct cultural practices have to be viewed
independently of the dictates of Qur’an, Sunnah and the opinion of jurists and scholars17.
A simple refutation of the highly discriminatory inheritance laws and practices in places
such as Nigeria and Pakistan, can eloquently be found in this verse of the Holy Qur’an,
“For men is a share of what the parents and close relatives leave, and for women is a
share of what the parents and close relatives leave, be it little or much - an obligatory
share. (4:7)”. In furtherance to this, there is another popular misconception that female
children can only get half of what male children get from their parent’s estate. This divine
15
Bolaji, Jaiyeola. "A Comparative Study of Women's Rights of Inheritance in Nigeria Under Islamic Law
and Some Customary Laws." Graduate Theses, University of Ilorin, Nigeria, 2011.
16
Wattoo, Ayesha. "Inheritance Rights of Women." Pakistan Today. November 11, 2014. Accessed
November 22, 2015. http://www.pakistantoday.com.pk/2014/11/11/comment/inheritance-rights-of-
women/.
17

law does not in any way prevent a father from giving away more of his wealth to his
daughter(s) by making a will (one-third of property) or gifting it.
For Hallaq (page 468), the Islamic laws on inheritance are based on the tribal
society, where extended families live together, communally sharing their belongings18.
This is why the orphan grandchildren are given no share in the inheritance of their
grandfather because the Law assumes that the children’s relatives will provide for them.
Similar is the case with women. It is assumed that the father, husband, brother or uncles
will provide for the entire family (based on the societal norms of pre-Islamic and early
Islamic times), therefore, the shares given to women were half of those given to their male
counterparts. Another reason of unequal shares in inheritance for men and women, given
by Dr. Muhammad Sharif Chaudhry and Fazlur Rahman, is that women receive
maintenance and dower from the husband19. Islamic law makes maintenance and dower
a compulsion on the husband and this compensates for the unequal inheritance that wives
receives20. Thus, the law intends that higher inheritance should equip men to be able to
maintain their wives in the prescribed fashion, in a society that it assumes is financially
headed by men.
Testimony
In matters of testimony, it is commonly believed that a woman witness counts only
as half of her male counterpart. This is a gross generalization which attempts to protract
18
Hallaq, WB, Sharī‘a: Theory, Practice, Transformations (CUP 2009) ‘Engineering family law’ 459-73.
19
20
Chaudhry, Mohammad. "Women's Rights in Islam by Dr. Muhammad Sharif Chaudhry (Chapter 9)."
Books on Islam. October 11, 2003. Accessed November 22, 2015. http://www.shaufi.com/b2/b2_09.htm.

a law which is only limited to matters of finances or contract making. The reason behind
such a differentiation is simply the unfamiliarity about such matters of women, especially
during the early days of Islam. The stipulation aims to empower and protect women from
manipulation and discrimination.
Javed Ghamidi argues that Shariah law does not in any way bind Muslims to adopt a
particular method to establish proof in criminal or civil matters21. This signifies that
universally acceptable methods of legal ethics made by reason and logic can be used
without reservation and it is up to the discretion of the judge to accept certain forms of
evidence or not. In this regard, there can be absolutely no discrimination between the
testimony of men and women. If a woman testifies in a clear and definite manner, her
testimony cannot be rejected simply on the pretext that there lack another woman witness
and a man to testify alongside her. Likewise, if a male witness presents an ambiguous and
vague statement, it cannot be accepted merely on the grounds that he is a man. If a court
is satisfied by the statements of witnesses, it has all the authority to declare a case as
proven regardless of the gender. Conversely, if a court is not impressed by the given
testimony, it possesses the discretion and power to turn it down even if ten men have
testified.
3 Conclusion
According to most contemporary Islamic scholars, it is generally agreed that legal
reform in Islamic tradition has by and large failed to keep up with the demands of modern
21

society and the challenges it brings with it. It is also conceived that while, there is a dire
necessity of bringing the current Muslim Personal Law in line with rhetoric of the post
united nations and post globalized world to end any form of gender based discrimination,
a balance has to be struck between upholding the basic tenets of Islam in light of informed
interepretations of the Qur’an and incorporation of discourse focusing on universally
accepted values on gender equality.

Bibliography
Hallaq, WB, Sharī‘a: Theory, Practice, Transformations (CUP 2009) ‘Engineering family
law’ 459-73.
Rahman, F, 'A Survey of Modernization of Muslim Family Law' (1980) 11 International
Journal of Middle East Studies 451.
Chaudhry, Mohammad. "Women's Rights in Islam by Dr. Muhammad Sharif Chaudhry
(Chapter 9)." Books on Islam. October 11, 2003. Accessed November 22, 2015.
http://www.shaufi.com/b2/b2_09.htm.
Wattoo, Ayesha. "Inheritance Rights of Women." Pakistan Today. November 11, 2014.
Accessed November 22, 2015.
http://www.pakistantoday.com.pk/2014/11/11/comment/inheritance-rights-of-
women/.
"Islam and Women: Misconceptions and Misperceptions." Javed Ahmad Ghamdi.
February 1, 2005. Accessed November 22, 2015.
http://www.javedahmadghamidi.com/renaissance/view/islam-and-women-
misconceptions-and-misperceptions-part-1-4.
Bolaji, Jaiyeola. "A Comparative Study of Women's Rights of Inheritance in Nigeria
Under Islamic Law and Some Customary Laws." Graduate Theses, University of
Ilorin, Nigeria, 2011.

Emon, Anver. "The Paradox of Equality and the Politics of Difference: Gender Equality,
Islamic Law, and the Modern Muslim State." Social Sciences Research Network,
2011. Accessed November 22, 2015.
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1758966.
"OSAGI Gender Mainstreaming - Concepts and Definitions." UN News Center. Accessed
November 22, 2015.
http://www.un.org/womenwatch/osagi/conceptsandefinitions.htm.
"The Punjab Commission On The Status Of Women." Muslim Family Laws Ordinance,
1961, Ordinance VIII. Accessed November 22, 2015.
http://pcsw.punjab.gov.pk/muslim_family_laws.
Mashhour, Amira. "Islamic Law And Gender Equality: Could There Be A Common
Ground?: A Study Of Divorce And Polygamy In Sharia Law And Contemporary
Legislation In Tunisia And Egypt." Human Rights Quarterly: 562-96.
Raja Muhammad Azram vs Jamila Banaras, 2011 YLR 1595
Mariyam Akhter & anr vs Petitioners Wazir Mohd (2005)
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Rev No. 51 OF 2005 AND
Cr M P No. 15 OF 2005
Allah Nawaz vs Station House Officer, Mahmood Kot District, Muzaffargarh, P L D 2013
Lahore 243

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