Syed Ameer Ali.

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Among the Arabs, the power of divorce possessed by the
husband was unlimited. They recognised no rule of humanity
or justice in the treatment of their wives. Mohammed looked
upon the custom of divorce with extreme disapproval, and
regarded its practice as calculated to undermine the founda-
tions of society. 4 He repeatedly declared that nothing pleased
God more than the emancipation of slaves, and nothing more
displeased Him than divorce. It was impossible, however,
under the existing conditions of society to abolish the custom
entirely. He was to mould the mind of an uncultured and
semi-barbarous community to a higher development so that
in the fulness of time his spiritual lessons might blossom in the
hearts of mankind. The custom was not an unmixed evil ;

1 Gibbon Decline and Fall of the Roman Empire, vol. iv. (2nd Ed.) p. 209.

2 Matt. T&M 9. I1>-i

3 Two of the Christian Gospels make no mention of the reason for which
Jesus allowed his followers " to put away " their wives (Mark x. 11 and Luke
xvi. 18). If the traditions recorded by these two Gospels be considered of
higher authority than those passing undei the name of Matthew, then our
contention is that Jesus, whilst preaching noble sentiments, and inculcating
high principles of morality, did not intend his words should be considered as
an immutable and positive law, nor had he any other idea than that of stem-
ming the rising tide of immorality and irreligion. Selden thinks that by an
evasive answer, Jesus wanted to avoid giving offence either to the school of
Shammai or that of Hillel, Uxor Hebraica, I. iii c. 18-22, 28, 31. Compare
Gibbon's valuable note on the interpretation of the Greek word iropvda,
rendered " fornication " in the English version, vol. iv. (2nd Ed.) p. 209,

4 Koran, sura ii. 226.


and accordingly he allowed the exercise of the power of divorce
to husbands under certain conditions. He permitted to
divorced parties three distinct and separate periods within
which they might endeavour to become reconciled and resume
their conjugal relationship ; but should all attempts at recon-
ciliation prove unsuccessful, then the third period in which
the final separation was declared to have arrived, supervened.
In case of conjugal disputes, he advised settlement by means
of arbiters chosen by the two disputants.

M. Sedillot, than whom no Western writer has analysed the
laws of Mohammed better, has the following passage on the
subject :

" Divorce was permitted, but subject to formalities which
allowed (and, we will add, recommended), a revocation of a
hurried or not well-considered resolution. Three successive
declarations, at a month's interval, were necessary in order to
make it irrevocable." *

The reforms of Mohammed marked a new departure in the
history of Eastern legislation. He restrained the power of
divorce possessed by the husbands ; he gave to the women the
right of obtaining a separation on reasonable grounds ; and
towards the end of his life he went so far as practically to
forbid its exercise by the men without the intervention of
arbiters or a judge. He pronounced " taldk to be the most
detestable before God of all permitted things," for it prevented
conjugal happiness and interfered with the proper bringing up
of children. The permission, therefore, in the Koran though
it gave a certain countenance to the old customs, has to be read
with the light of the Lawgiver's own enunciations. When it
is borne in mind how intimately law and religion are connected
in the Islamic system, it will be easy to understand the bearing
of his words on the institution of divorce.

Naturally, great divergence exists among the various schools
regarding the exercise of the power of divorce by the husband
of his own motion and without the intervention of the judge.
A large and influential body of jurists regard taldk emanating
from the husband as really prohibited, except for necessity,
such as the adultery of the wife. Another section, consisting

1 Sedillot, Histoire des Arabes, vol. i. p. 85.


chiefly of the Mu'tazilas, 1 consider taldk as not permissible or
lawful without the sanction of the Hakim ush-shara'. They
hold that any such case as may justify separation and remove
taldk from the category of being forbidden, should be tested by
an unbiased judge ; and, in support of their doctrine, they
refer to the words of the Prophet already cited, and to his
direction that in case of disputes between the married parties,
arbiters should be appointed for the settlement of their

The Hanafis, the Malikis, the Shafe'i's and the bulk of the
Shiahs hold taldk to be permitted, though they regard the
exercise of the power without any cause to be unlawful.

The Radd nl-Muhtdr, after stating the arguments against the
proposition that taldk is unlawful, proceeds to say, " no doubt,
it is forbidden, but it becomes mubdh (permitted) for certain
outside reasons, and this is the meaning of those jurists who
hold that it is really forbidden."

Although " the Fathers of the Church " have taken up the
temporary permission as the positive rule, and ignored many
of the principles of equity inculcated by the Master, the rules
laid down by the legists are far more humane and just towards
women than those of the most perfect Roman law developed
in the bosom of the Church. 2 According to the legists, the
wife also is entitled to demand a separation on the ground of
ill-usage, want of proper maintenance, and various other
causes ; but unless she showed very good and solid grounds for
demanding the separation, she lost her " settlement " or
dowry. In every case, when the divorce originated with the
husband (except in cases of open infidelity), he had to give up
to her everything he settled upon her at her marriage. 3

1 See post. 2 Milman's Latin Christianity, vol. i. pp. 368, 369.

3 M. Sedillot also speaks of the condition which (according to the Sunnite
doctrines) requires that in such cases of complete separation, prior to the
husband and wife coming together again, the latter should marry another
and be divorced anew, — as a very wise measure which rendered separation
more rare. Muir censures Mohammed for making such a condition necessary
(vol. hi. p. 306). He ignores, that, among a proud, jealous, and sensitive race
like the Arabs, such a condition was one of the strongest antidotes for the
evil. The very proverb he quotes ought to have shown the disgrace which
was attached to the man who would make his wife go through such " a dis-
gusting ordeal." I am afraid, in his dislike towards Mohammed, Sir W.
Muir forgot that this condition was intended as a check on that other


The frequent admonitions in the Koran against separations,
the repeated recommendation to heal quarrels by private
reconciliation, show the extreme sacredness of the marriage
tie in the eyes of the Arab Legislator :

" If a woman fear ill-usage or aversion from her husband, it
shall not be blameable in them * if they agree with mutual
agreement, for reconciliation (or agreement) is best. (Men's)
souls are prone to avarice ; but if ye act kindly and deal
piously, verily God is well acquainted with what ye do. And
ye will not have it at all in your power to treat your wives alike
with equity, even though you fain wanted to do so ; 2 yet yield
not to your inclinations ever so much as to leave her in sus-
pense ; and if ye agree and act piously, then, verily, God is
forgiving and merciful." 3

And, again, in a preceding verse, it is declared :

" And if ye fear a breach between them (man and wife),
then send a judge chosen from his family and a judge chosen
from her family ; if they desire a reconciliation, God will cause
them to agree ; verily, God is knowing and apprised of all." 4

The sanctity attached to the institution of marriage in the
Islamic system has either not been apprehended or sufficiently
appreciated by outsiders. " Marriage," says the Ashbdh w'an-
Nazdir, "is an institution ordained for the protection of

" revolting " practice rife both among the Jews and the heathen Arabs, and
by example also among the Christians, of repudiating a wife on every slight
occasion, at every outburst of senseless passion or caprice. This check was
intended to control one of the most sensitive nations of the earth, by acting
on the strongest feeling of their nature, the sense of honour (compare Sale,
Preliminary Discourse, p. 134). Sir W. Muir also forgot that many of the
Shiite doctors do not recognise the obligation or validity of the wife's being
married to a third person, prior to her being taken back (compare Malcolm,
History of Persia, vol. ii. p. 241, and the Mabsiit, in loco).

For my part, I believe in the correctness of the construction, namely, that
the verse which says, " When ye divorce women, and the time for sending
them away is come, send them away with generosity ; but retain them not
by constraint so as to be unjust towards them " abrogates the preceding verse,
which requires the intervention of a third person.

1 The Arabic expression implies " it will be commendable," etc.

2 This furnishes another argument against those Mohammedans who hold
that the developed laws of Islam allow plurality of wives. It being declared
that " equity " is beyond human power to observe, we must naturally infer
that the Legislator had in view the merging of the lower in the higher prin-
ciple, and the abolition of a custom which though necessary in some state of
society, is opposed to the later development of thought and morals.

3 Koran, sura iv. 128, 129. 4 Koran, sura iv. 35.


society, and in order that human beings may guard themselves
from foulness and unchastity." " Marriage is a sacrament,
insomuch that in this world it is an act of 'ibddat or worship,
for it preserves mankind free from pollution." ..." It is
instituted by divine command among members of the human
species." " Marriage when treated as a contract is a per-
manent relationship based on mutual consent on the part of
a man and a woman between whom there is no bar to a lawful

It has been frequently said that Mohammed allowed his
followers, besides the four legitimate wives, to take to them-
selves any number of female slaves. A simple statement of
the regulation on this point will show at once how opposed this
notion is to the true precepts of Islam. " Whoso among you
hath not the means to marry a free believing woman, then let
him marry such of your maid-servants whom your right hands
possess and who are believers. This is allowed unto him
among you who is afraid of committing sin ; but if ye abstain
from allying yourself with slaves, it will be better for you."

On this slender basis, and perhaps on some temporary and
accidental circumstances connected with the early rise of the
Moslem commonwealth, have our legists based the usage of
holding (jdrias) female slaves. And this, though opposed to
the spirit of the Master's precepts, has given rise to some of
the strongest animadversions of rival religionists.

Concubinage, the union of people standing to each other in
the relation of master and slave, without the sanction of
matrimony, existed among the Arabs, the Jews, the Christians,
and all the neighbouring nations. The Prophet did not in the
beginning denounce the custom, but towards the end of his
career he expressly forbade it.

" And you are permitted to marry virtuous women who are
believers, and virtuous women of those who have been given
the Scriptures before you, when you have provided them their
portions, living chastely with them without fornication, and not
taking concubines." l

Compare the spirit of the first part of this commandment
with the exclusiveness of Christian ecclesiasticism, which

1 Sura v. 5.


refused to recognise as valid or lawful the union of a Christian
with a non-Christian. The stake frequently was the lot of the
" infidel " who indulged in the temerity of marrying a
Christian. Mohammed's rule was a distinct advance in

The prohibition directed against Moslem women entering
into marriage with non-Moslems, which has furnished a handle
for attacks, was founded upon reasons of policy and the neces-
sities of the early commonwealth.

It cannot be denied that several institutions which the
Musulmans borrowed from the pre-Islamic period, " the Days
of Ignorance," and which exist simply as so many survivals of
an older growth, have had the tendency to retard the advance-
ment of Mohammedan nations. Among them the system of
the seclusion of women is one. It had been in practice among
most of the nations of antiquity from the earliest times. The
gynaikonitis was a familiar institution among the Athenians ;
and the inmates of an Athenian harem were as jealously guaided
from the public gaze as the members of a Persian household
then, or of an Indian household now. The gynaikonomoi, like
their Oriental counterpart, were the faithful warders of female
privacy, and rigorously watched over the ladies of Athens.
The seclusion of women naturally gave birth to the caste of
Hetairai, various members of whom played such an important
part in Athenian history. Were it not for the extraordinary
and almost inexplicable spectacle presented by the Byzantine
empire and modern Europe and America, we should have said
that in every society, at all advanced in the arts of civilised
life, the growth of the unhappy class of beings whose existence
is alike a reproach to humanity and a disgrace to civilisation,
was due to the withdrawal of women from the legitimate
exercise of their ennobling, purifying, and humanising influence
over the minds of men. The human mind, when it does not
perceive the pure, hankers after the impure. The Baby-
lonians, the Etruscans, the Athenians and the pre-Islamite
Meccans furnish the best exemplification of this view in ancient
times. The enormity of the social canker eating into the heart
and poisoning the life-blood of nations in modern times is
due, however, to the spread of a godless materialism covered


with a thin veneer of religion, be it Christianity, be it Moham-
medanism, or any other form of creed. Mohammed had, in
early life, observed with pain and sorrow the depravity
prevailing among the Meccans, and he took the most effective
step suited to the age and the people to stamp out the evil.
" By his severe laws at first," to use the expressive language
of Mr. Bosworth Smith, " and by the strong moral sentiment
aroused by these laws afterwards, he has succeeded, down to
this very day, and to a greater extent than has ever been
the case elsewhere, in freeing all Mohammedan countries " —
where they are not overgrown by foreign excrescences — ' ' from
those professional outcasts who live by their own misery,
and, by their existence as a recognised class, are a standing
reproach to every member of the society of which they form
a part."

The system of female seclusion undoubtedly possesses many
advantages in the social well-being of unsettled and uncultured
communities ; and even in countries, where the diversity of
culture and moral conceptions is great, a modified form of
seclusion is not absolutely to be deprecated. It prevails at
the present moment, in forms more or less strict, among
nations far removed from Moslem influences, to which is
ascribed the existence of the custom in India and other Oriental
countries. In Corea, female seclusion is carried to the height
of absurdity. In China and among the Spanish colonies of
South America, which are not within the immediate ambit of
the European social code, the Purdah is still observed. The
Prophet of Islam found it existing among the Persians and
other Oriental communities ; he perceived its advantages, and
it is possible that, in view of the widespread laxity of morals
among all classes of people, he recommended to the women-folk
the observance of privacy. But to suppose that he ever
intended his recommendation should assume its present
inelastic form, or that he ever allowed or enjoined the seclusion
of women, is wholly opposed to the spirit of his reforms. The
Koran itself affords no warrant for holding that the seclusion
of women is a part of the new gospel.

" O Prophet ! speak to thy wives and to thy daughters, and
to the wives of the Faithful, that they let their wrappers fall


low. Thus will they more easily be known, and they will not
be affronted. God is indulgent, merciful." 1

" And speak to the believing women, that they refrain their
looks and observe continence ; and that they display not their
ornaments except those which are external, and that they
draw their kerchiefs over their bosoms." 2

Directions easy to understand 3 in the midst of the social and
moral chaos from which he was endeavouring, under God's Guid-
ance, to evolve order, — wise and beneficent injunctions having
for their object the promotion of decency among women, the
improvement of their dress and demeanour, and their protec-
tion from insult. 4 It is a mistake, therefore, to suppose there
is anything in the law which tends to the perpetuation of the
custom. Considerable light is thrown on the Lawgiver's
recommendation for female privacy, by the remarkable im-
munity from restraint or seclusion which the members of his
family always enjoyed. 'Ayesha, the daughter of Abu Bakr,
who was married to Mohammed on Khadija's death, personally
conducted the insurrectionary movement against Ali. She
commanded her own troops at the famous " Battle of the
Camel." Fatima, the daughter of the Prophet, often took
part in the discussions regarding the succession to the Caliphate.
The grand-daughter of Mohammed, Zainab the sister of Husain,
shielded her youthful nephew from the Ommeyyades after the
butchery of Kerbela. Her indomitable spirit awed equally the
ferocious Obaidullah ibn Ziyad and the pitiless Yezid.

The depravity of morals, which had sapped the foundations

1 Sura xxxiii. 59. * Sura xxiv. 31.

3 Those who have travelled in Europeanised Egypt and in the Levant will
understand how necessary these directions must have been in those times.

4 Hamilton, the translator of the Heddya, in his preliminary discourse
dealing with the Book of Abominations, has the following : " A subject which
involves a vast variety of frivolous matter, and must be considered chiefly
in the light of a treatise upon propriety and decorum. In it is particularly
exhibited the scrupulous attention paid to female modesty, and the avoidance
of every act which may tend to violate it, even in thought. It is remarkable,
however, that this does not amount to that absolute seclusion of women
supposed by some writers. In fact, this seclusion is a result of jealousy or
pride, and not of any legal injunction, as appears in this and several other
parts of the Hedava. Neither is it a custom universally prevalent in Moham-
medan countries." Marsden, in his Travels, says : " The Arab settlers in
Java never observed the custom, and the Javanese Mussulman women enjoy
the same amount of freedom as their Dutch sisters."


of society among the pre-Islamic Arabs, as well as among the
Jews and the Christians, urgently needed some correction.
The Prophet's counsel regarding the privacy of women served
undoubtedly to stem the tide of immorality, and to prevent
the diffusion among his followers of the custom of disguised
polyandry, which had evidently, until then, existed among
the pagan Arabs.

According to von Hammer, " the harem is a sanctuary : it
is prohibited to strangers, not because women are considered
unworthy of confidence, but on account of the sacredness with
which custom and manners invest them. The degree of
reverence which is accorded to women throughout higher
Asia and Europe (among Mohammedan communities) is a
matter capable of the clearest demonstration."

The idealisation of womanhood is a natural characteristic of
all the highest natures. But national pride and religious
bigotry have given rise to two divergent theories regarding
the social exaltation of women among the cultured classes in
modern Christendom. The one attributes it to Mariolatry, the
other to Mediaeval chivalry, alleged to be the offspring of
Teutonic institutions. Of Christianity, in its relation to
womankind, the less said the better. In the early ages, when
the religion of the people, high and low, the ignorant and
educated, consisted only of the adoration of the mother of
Jesus, the Church of Christ had placed the sex under a ban.
Father after father had written upon the enormities of women,
their evil tendencies, their inconceivable malignity. Tertullian
represented the general feeling in a book in which he described
women as " the devil's gateway, the unsealer of the forbidden
tree, the deserter of the divine law, the destroyer of God's
image — man." Another authority declared with a revolting
cynicism, " among women he sought for chastity but found
none." Chrysostom, who is recognised as a saint of high
merit, " interpreted the general opinion of the Fathers," says
Lecky, " when he pronounced women to be a necessary evil,
a natural temptation, a desirable calamity, a domestic peril,
a deadly fascination, a painted ill." The orthodox Church
excluded women from the exercise of all religious functions
excepting the lowliest. They were excluded absolutely from


society ; they were prohibited from appearing in public, from
going to feasts or banquets. They were directed to remain in
seclusion, to observe silence, to obey their husbands, and to
apply themselves to weaving and spinning and cooking. If
they ever went out they were to be clothed from head to foot.
Such was the position of women in Christianity when Mariolatry
was recognised and practised by all classes. In later times, and
in the gloomy interval which elapsed between the overthrow of
the Western empire and the rise of modern society in Europe,
a period which has been described as one of " rapine, falsehood,
tyranny, lust, and violence," Christianity, by introducing
convents and nunneries, served, in some respects, to improve
the lot of women. This questionable amelioration, however,
was only suited for an age when the abduction of women was
an everyday occurrence, and the dissoluteness of morals was
such as to defy description. But the convents were not always
the haunts of virtue, nor the inculcation of celibacy the surest
safeguard of chastity. The Registrum Visitationem, or the
diary of the pastoral visits of Archbishop Rigaud, throws a
peculiar light upon the state of morality and the position of
the sex during the most glorious epoch of the Age of Faith.
The rise of Protestantism made no difference in the social
conditions or in the conception of lawyers regarding the status
of women, jesus had treated woman with humanity ; his
followers excluded her from justice.

The other theory to which we have adverted is in vogue
among the romanceurs of Europe. They have represented each
historical figure in the Middle Ages to be a Bayard or a Crichton.
The age of chivalry is generally supposed to extend from the
beginning of the eighth to the close of the fourteenth century
— a period, be it noted, almost synchronous with the Saracenic
domination in Spain. But, during this period, in spite of the
halo which poetry and romance have cast around the conditions
of society, women were the frequent subjects of violence.
Force and fraud were the distinguishing characteristics of the
golden age of Christian chivalry. Roland and Arthur were
myths until the West came in contact with the civilisation
and culture of the East. Chivalry was not the product of the
wilds of Scandinavia or of the gloomy forests of Germany ; —


prophecy and chivalry alike were the children of the desert.
From the desert issued Moses, Jesus, and Mohammed ; from
the desert issued 'Antar, Hamza, and Ali.

The condition of women among the Arabs settled in the cities
and villages, who had adopted the loose notions of morality
prevalent among the Syrians, Persians, and Romans, was, as
we have already stated, degraded in the extreme. Among
some of the nomads, however, they enjoyed great freedom,
and exercised much influence over the fortunes of their tribes.
" They were not, as among the Greeks," says Perron, " the
creatures of misery." They accompanied the warriors to

Online LibrarySyed Ameer AliThe spirit of Islâm : a history of the evolution and ideals of Islâm → online text (page 29 of 55)