Shamima's Dialogue with the 'Ulama

Sometime in July 1995, Shamima Shaikh was a guest on "Religion on the Line" on the SABC (South African Broadcasting Corporation) radio channel SAfm. She was being interviewed on various issues regarding Islam, but with a focus on women's rights. Not long after the programme, the United Ulama Council of South Africa wrote to her objecting to certain statements she had made on the show. Shamima responded to the letter in writing and received a second letter from the UUCSA. Those three letters are reproduced here…

THE UNITED ULAMA COUNCIL OF SOUTH AFRICA

Respected Sister in Islam

RADIO INTERVIEW : SAFM LIVE

Our attention has been drawn to a recent radio interview in connection with Muslim Personal Law at which you stated inter alia that :

"the bill supports unilateral and extra-judicial divorce on the part of the husband, and that has no basis in the Quran, and that’s one of the areas that requires reform...that type of divorce has no basis in the Quran."

This statement is contrary to the fundamental principles contained in the Holy Quran and the consensus of muslim jurists (IJMA) throughout the ages. The meaning of all the verses relating to talaaq in the Holy Quran is that the right of talaaq has been given to the husband only. The talaaq takes effect immediately upon pronouncement by the husband himself, and is not dependent upon the decree or consent of a third party.

As an illustration only, take the following verse of the Holy Quran:

• SURAH 33 VERSE 49

"O believers, if you marry believing women and then you (men) divorce them before you have touched them ..."

In this verse, the right to pronounce divorce is given to the husband, and the consequential effect of the divorce is also immediate – the divorcee is not required to calculate a waiting period and she is free to marry a third party of her choice.

• SURAH 65 VERSE 1

"When you (men) divorce women, divorce them at their prescribed periods and calculate the period"

In this verse, the right of pronouncing divorce is clearly ascribed to the husband. The instruction to divorce in a period of purity (by consensus) proves conclusively that the unilateral pronouncement of the husband takes immediate effect, otherwise there was no point in giving the instruction to him in the first place.

• SURAH 2 VERSE 228

 

"And divorced women shall wait for three periods ... and their husbands have the better right to take them back in that period if they wish for reconciliation..."

The use of the words "divorced women" shows clearly that the husband’s unilateral pronouncement of talaaq takes immediate effect and cannot be regulated in any manner. This is why ALLAH has described them as "divorced women". In addition, the right of taking back (RUJU) is the prerogative of the husband in consequence of his unilateral divorce.

In all the circumstances, your statement quoted above, amounts to a gross misrepresentation of Islam and a fundamental breach of Quranic Law. As you should know, the wife is entitled by application to a judicial committee to have her marriage dissolved on grounds recognised by Islamic Law. She is also entitled through the procedure of TAFWID UL TALAAQ to have the right of talaaq assigned to her in the marriage contract according to conditions recognised in Islamic Law. You made no mention of this, and other relevant Islamic provisions relating to family law, in the interview in order to portray a balanced and fair view showing the equity underlying the system of family law in Islam.

Whilst it is appreciated that the husband’s unfair treatment in certain cases causes hardship to the wife, the answer is not to alter an express and unambiguous text (NASS) of the Holy Quran, but to educate Muslims and to inculcate true taqwa. All the laws of Islam are equitable, just and for the benefit of society.

Unless, therefore, you retract your statement quoted above in writing within 5 days, our Council will have no alternative but to publish a public rebuttal of your views. We believe that such gross misrepresentation brings Islam and Muslims into disrepute – apart from amounting to a gross violation of Islamic Law with serious consequences. We look forward to hearing from you.

Wasalaam

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FOR UNITED ULAMA COUNCIL OF S A
DULY AUTHORISED

Shamima Shaikh, P O Box 601 Crown Mines 2025,
Tel: (011)837-9963, Fax: (011)8393632

9 August 1995

The United Ulama Council of South Africa
PO Box 4118
Cape Town
8000
Fax: (021) 696-8502

In the Name of Allah, Most Gracious, The Dispenser of Grace

Respected Brothers

Reforming MPL Practices

I greet you on this auspicious day – the birthday of the greatest reformer, the Prophet Muhammad (saw) and National Women’s Day.

Muslims throughout the world commemorate the birth date of Muhammad (saw). We recall that he came as a mercy unto humankind, challenging inhumane and unjust practices. He brought the message of peace and tauhid – forever forbidding subservience to any but Allah. The unity of Allah bears testimony that there is none worthy of worship except Allah and that all humankind is equal irrespective of race, class or gender.

Today for all South Africans it is also a special day – Women’s Day. On this day we honour the women who marched to the Union Buildings in 1956. We also reaffirm our commitment to remove all forms of discrimination in our land, specifically that based on gender – 1400 years later, but nonetheless affirming the message of our beloved Nabi (saw).

I hope you are keeping well by the Grace of Allah. I have, as had the rest of my family, the flu, but by Allah’s Grace am able to respond to your letter – Radio Interview: SAFM Live.

I received the fax on the 24 July 1995 (and some days later a registered letter). In the letter you are critical of my call for the reform of the practice of unilateral and extra judicial divorce on the part of the husband and my assertion that this had no basis in the Qur’an.

You assert that unilateral divorce has basis in the Qur’an and therefore cannot be reformed. You support your position with extracts from the Qur’an, and ask me to retract my statement within five days of receiving your fax or you will publish a “public rebuttal”. You also say that my “gross misrepresentation brings Islam and Muslims into disrepute”.

I thank you for the advice, information and for raising your points of contention. If I did not respond immediately it is not because I thought the matter was not urgent. Rather, I am officially a housewife and my own “business” often takes a back seat.

I do, however, resent your “demand” for a response within five days; you have neither the moral (or other) authority nor power to make such a “demand”. It was rather discourteous of you, I thought. You would have noted that I did not respond within five days, so your promise of a “public rebuttal” will apply, I expect.

We very much want to engage in healthy and constructive public discussion on the issue. Muslim Personal Law is not a private issue neither is it the domain of the clergy class; it affects all Muslims, and we therefore believe it is an issue for public discussion and input.

However, in the interests of fairness and Islamic aadaab we are sure you would make it your responsibility to include our response to any “rebuttal”. And if you are using any public platform it would be possible to respond on the same platform. Remember that we have entered into a new era of transparency and democracy which your constituent organisations have enthusiastically embraced. I am sure that in the same vein you are also committed to changing the old system of excluding people from the mosque and other Muslim institutions. Muslims have a heritage of access to mosque platforms – a heritage sadly lost and missed.

We challenge the perception that the five ‘ulama bodies (i.e. Jamiatul ulama Transvaal, Muslim Judicial Council, Jamiatul Ulama Natal, Sunni Ulama Council, Sunni Jamiyate Ulama) are the authorities of Islam in South Africa. We know that there is no clergy in Islam and that there has always existed diversity of opinion in Islamic history.

We would at the very outset like to say that we disagree with your promotion of unilateral and extra-judicial divorce. We are terribly disappointed that you pick out a few extracts from the Qur’an and on that basis decide on an issue and consider it to be the only possible conclusion. On reading only the verses about divorce in the Qur’an, many Muslim scholars arrive at conclusions different from yours. On reading the message of the Qur’an in its entirety we are left in no doubt that arbitrary divorce on the part of the husband conflicts with the spirit of shura, decency, dignity and justice.

We must recall that the Qur’an 1400 years ago challenged inhumane and unjust practices; in this challenge to unjust practices the Qur’an demonstrates that all systems (including your MPL) require muhasabah (evaluation) and adjustment periodically in order to continually reflect the principles of social justice and human equality.

Please allow me to explain our position: We challenge the inhumane and unjust practices prevalent in MPL. We believe much of the practice needs to be reformed to bring it on par with the Islamic principles of justice, equality and freedom. We must go back to the Qur’an and formulate an MPL that is just. The problem, it seems, is that you are trying to implement an MPL code that was developed in the ninth century. The context was different and the assumptions on which the laws were based are very different. We were never meant to impose those laws on our context, rather, we are meant to apply the eternal, universal and Divine Qur’an to our context.

The practice of unilateral and extra-judicial divorce in our context goes against the grain of shura and decency. I will quote the translation of just two verses you omitted. (I have for your information included the translation of most of the verses on divorce in the Qur’an.) Please take note that we believe the Qur’an should apply in its entirety and that it is a gross misrepresentation to select extracts and on your interpretation of these, support your position.

And so, when they are about to reach the end of their waiting term, either retain them in a fair manner or part with them in a fair manner. And let two persons of (known) probity from among your community (i.e. persons who are acquainted with the circumstances of the case) witness; and do yourselves bear witness before God (that the decision has not been made in a frivolous manner); thus are admonished all who believe in God and the Last Day… (Qur’an 65:2)

And if you have reason to fear that a breach might occur between a (married) couple, appoint an arbitrator from among his people and an arbitrator from among her people; if they both want to set things aright, God may bring about their reconciliation… (Qur’an 4:35)

I would like to stress the Qur’anic message: part with them in a fair manner; two witnesses, you yourself bear witness before God; appointment of arbitrators from both sides, setting things right if both want to. All this makes nonsense of the arbitrary divorce process prevalent and sanctioned by you, dear ‘ulama.

One should be aware of the warning of the Qur’an: “Do you believe in part of the Book and reject another part?” The Muslim community is at liberty to “listen to the statement and follow the better part of it,” (Qur’an 39:18).

Moreover, marriage – we all agree – is a contract between two people and therefore a legally binding agreement. If any one partner wants out there must be a proper process. I do not believe that any of you would allow your business partner to opt out of a contract between you without consulting you or going through some legal process. Isn’t there more reason for a proper process for dissolution of a marriage contract.

I would like to remind you of Shaikh Rashid Ghannushi’s statement at the launch of the MPL Board, where many of you were present. Shaikh Ghannushi cited the fatwa of Shaikh al-Ja’it of Tunisia. He said that men abuse talaq and they must go to court to dissolve the marriage. Nobody at the meeting challenged Ghannushi’s statement.

I have touched briefly on some of the issues. There are many other issues we can share our positions on. I would also like to remind you that it was your organisation that dissolved the MPL Board. The MPL Board provided a forum for discussion and debate and we would have all, no doubt, benefited tremendously, coming out enriched and better educated.

I welcome your assertion that a wife is entitled to apply for a divorce. I am sure you would not be surprised to learn that there are some people who believe that this is a misrepresentation of Islam.

Last but not least… I share your concern that Islam and Muslims are often brought into disrepute even by Muslims themselves. Might I remind you that it is many from your fraternity, the United Ulama Council, who have been responsible for “gross misrepresentation of Islam” and the administration of injustices to women. The testimonies of many women who have been subject to your administration of Muslim Personal Law will bear witness to that.

Brothers, the “secular” state has committed itself to truth and reconciliation, justice and equality, accountability and democracy…, why are we lagging behind?

I look forward to hearing from you and pray that we will agree on a fair and constructive manner in which we can take this discussion to the community.

Your sister in Islam

______________
Shamima Shaikh

THE UNITED ULAMA COUNCIL OF SOUTH AFRICA

Shamima Shaikh

P.O. Box 601

Crown Mines

2025

24 October 1995

Respected Sister

RE: RADIO INTERVIEW – SAFM LIVE

We refer to your letter dated 9th August 1995.

The opinions expressed by you therein are devoid of substance. They simply display gross ignorance, and an arrogant refusal to accept the truth. There is therefore little point in corresponding with you any further. The correspondence is closed. May ALLAH grant you HIDAYAH and give you the TAWFIQ to surrender fully.

Yours sincerely

______________________________

FOR UNITED ULEMA COUNCIL