Wife beating 4:34

Discipline as a Means to Marital Reconciliation
http://gimmetruth.wordpress.com/2006/06/04/discipline-as-a-means-to-marital-reconciliation/

I would like to share an interesting piece on “Marital Discipline” in Islam. The following authors are respected friends of mine and students of law at Michigan State University.
Disclaimer: The views expressed on my blog are not necessarily shared by the authors and vice versa. Enjoy!

Discipline as a Means to Marital Reconciliation: the Husband’s Graduated Response to His Wife’s Disobedience Under Islamic Law

By: Bassam A. Abed & Syed E. Ahmad (MSU Law School)

I. Introduction (Bassam and Syed)
A common criticism exists that Islam is an androcentric religion that authorizes the oppression of women both in public and private spheres. Wife beating is often cited to support this claim. The perception that Islam permits a husband to beat his wife resides with some non-Muslims and Muslims alike. Acknowledging this perception, we explore in this paper the Islamic legal perspective on wife beating specifically and wife discipline in general.The primary source of legislation on wife discipline in Islamic law is verse 34 of the fourth chapter of the Qur’an entitled “the Women.” The verse presents the disciplinary scheme in the latter sentence of the verse—hereafter referred to as the “Discipline Passage.” The verse in whole reads: (Husbands) are the protectors and maintainers of their (wives) because Allah has given the one more (strength) than the other, and because they support them from their means. Therefore the righteous women are devoutly obedient and guard in (the husband’s) absence what Allah would have them guard. As to the women on whose part you fear disloyalty and ill-conduct, admonish them first, (next), refuse to share their beds, (and last) spank them (lightly), but if they return to obedience, seek not against them means of (annoyance): for Allah is Most High, Great (above you all).

Those who suggest that Islam permits wife beating use this verse for proof. We thus primarily direct our analysis to verse 4:34. We examine verse 4:35 as well since it deals with the related issue of arbitration. Furthermore, our legal inquiry into these verses incorporates applicable insight from other Qur’anic verses, the Sunna, the Prophet’s companions, and subsequent Islamic jurists. When significant differences in scholarly opinions exist, we address them accordingly.

Finally, it is important to note that Islam (as recognized in verse 4:128) does provide the wife with recourse against her husband under certain circumstances. Nevertheless, we will not further address this remedy as it is beyond the scope of the paper.

Part II of this paper explains the nature of an ideal Islamic marital relationship. Part III presents the historical context in which verse 4:34 was revealed its legal implications. Part IV and V discuss in depth verses 4:34 and 4:35 respectively. Part VI offers the conclusion.

II. The Nature of the Islamic Marital Relationship (Syed)

A. The Foundation
Before going into depth about Islamic guidelines on reconciliation and wife discipline, it is important to highlight the equality of the genders in Islam and the importance that Islam places on marriage. Doing so will put into context the rules regarding reconciliation and discipline.Under Islam, men and women are deemed full and equitable partners of each other. In familial terms “[h]e is the father, she is the mother, and both are essential for life. Her role is not less vital than his.” “By this partnership, she has an equal share in every aspect. She is entitled to equal rights, she undertakes equal responsibilities, and she has as many qualities and as much humanity as her partner.” This equitable relationship between the husband and the wife must be one of love, mercy, tranquility, and kindness.

The Qur’an outlines its expectations of a marital relationship:
“And among His (Allah’s) signs is this: that He created for you mates from among yourselves that ye may dwell in tranquility with them, and He has put love and mercy between your (hearts): verily in that are signs for those who reflect.”

The first part of the verse highlights the equity of the husband and the wife by stating that husbands’ wives are created from among them. The first part of this verse uses as a springboard the idea of the shared qualities of the husband and the wife and the concept of humanity for both genders to convey the importance of tranquility, mercy and love between the couple. As this verse illustrates, some of the most important components of a healthy Islamic marital relationship is that the couple live in tranquility, with love and mercy for each other.
The Qur’an instructs husbands to treat the wife with kindness and equity:

“Live with them on a footing of kindness and equity. If ye take a dislike to them it may be that ye dislike a thing, and Allah brings through it a great deal of good.” According to the scholar Abul ‘Ala Maududi, this verse refers to husbands who upon discovering a negative trait in their wife decide to separate from them. Rather than doing so, Maududi interprets the Qur’an as saying that the husband should remain patient because the wife probably has other qualities that are the necessary for a happy marriage. In essence, kindness and equity along with patience are key elements to a truly Islamic marriage.

Equity and love between the husband and the wife is also metaphorically spoken of in the Qur’an when it states, “They are your garments and ye are their garments….” Scholars have interpreted this to mean that husbands and wives need mutual support, mutual comfort, and mutual protection. It is also a reference to the fact that spouses are each other’s sanctuary insofar as each covers the others’ shortcomings and preserves his or her privacy; hence the tranquility and harmony.

It is not just the Qur’an that instructs husbands to treat their wives with love and kindness. The Prophet has been quoted as saying, “Among the Muslims, the most perfect as regards to his faith is the one whose character is most excellent, and the best among you are those who treat their wives well.” In this hadith the Prophet, by a logical equation, equated faith (in essence one’s belief in religion) with good moral character and in turn stated that the best of the Muslims are those that treat their wives well. One can deduce from this hadith that in order for a person to become one of the best individuals in the eyes of God, he has an obligation to treat his wife well. As mentioned earlier, the Qur’an requires kindness, love, mercy, and equity from the husband to the wife (and vice versa).
So far, one can see that tranquility, love, mercy, equity, and kindness are the hallmark of an ideal marriage under Islam. In case these aspects start to lack, it becomes the duty of the husband and the wife to seek these aspects in their marriage in order to reconcile and maintain the marriage. The husband and the wife are expected to do everything physically, emotionally, and spiritually to bring the marriage back to higher levels. Scholars advise that the couple “must care for each other. They should not harm or injure each other, either physically or verbally. In order to increase the tranquility and comfort in their relations and in their home, they should love each other and be merciful and kind to each other.” Being the command of the Qur’an, actions to bring back the required harmony between the married couple becomes an obligation rather than a suggestion.

It is clear that Islam places great importance to the institution of marriage. Furthermore, it requires that the marriage be a tranquil one and sets out general guidelines as to the expectations of this harmonious relationship. At the same time, Islam does acknowledge that marriages will have their highs and lows and encourages reconciliation to save and protect the institution of marriage. Islam has an expectation from both the husband and the wife to keep the marriage together and to remind one another of staying persistent for the sake of goodness and for the prevention of evil. The Qur’an mentions that, “And the believers, men and women, are protecting friends of one another; they enjoin the right and forbid evil.”

B. Marital Discord
Reconciliation thus becomes an important component of a marital relationship. However, some marital relationships do deteriorate to a point where reconciliation is not possible or is not desired (by either the husband or the wife). In that scenario, Islamic law makes available the option of divorce. This option is available to either party.Either party can decide that they do not want to persist with the relationship and call for a divorce.

In the case that divorce is sought, the “Discipline Passage” is no longer applicable to that couple. One cannot discipline his wife if the wife seeks a divorce. Similarly, a husband may not go through the discipline process with the intention of divorcing his wife subsequently. The discipline process must only be used in a good faith effort to reconcile the marriage.Even in the case when divorce is sought, Islam requires kindness on the part of the man and the woman.
The Qur’an orders that in the case of divorce, “The parties should either hold together on reasonable terms or separate with kindness.” One verse later, the Qur’an restates that the husband (in the case of him initiating the divorce) should “either take her back on reasonable basis or set [her] free on a reasonable basis. But the [husband] cannot take them back to hurt them, and whoever does that, then he has wronged his soul.” These two verses emphasize and then reemphasize that divorce is discouraged (by mentioning that the couple could return to their marital union) and if they decide against it, to split on amicable and kind terms.
The Qur’an specifically condemns those who take back their wives with the intent to hurt them again.In order to drive in the severity of the points the Qur’an makes in these two verses, it continues by saying , “Treat not the verses (laws) of Allah as jest, remember Allah’s favors on you, and that which He has sent down to you of the book (the Qur’an) and the guidance (the Prophet’s ahadith), whereby He instructs you. And fear Allah, and know that Allah is aware of all things.”
By immediately following this statement with condemning the intentional ill-treatment of wives (by rescinding divorce after granting it only to humiliate and hurt the wife), a strong point is made signaling the immense importance of divorcing on kind and amicable terms.As illustrated in the two quoted verses (2:229 and 2:231), when talking about divorce the Qur’an makes a last ditch effort to encourage reconciliation if possible. This shows that Islam, while legally permitting divorce, frowns upon it. As a result, attempting reconciliation becomes an important element of any strained marital relationship.C. Qawaam as the Disciplinary AuthorityIslamic law allows for disciplining as a means of reconciliation between members of a marital or a familial relationship. Disciplining is merely a means to an end of reconciliation between two or more individuals.
The disciplining process is outlined in the “Discipline Passage.” However, as with any form of discipline, not anyone has the authority to discipline someone else. Usually, the power to discipline is delineated to the one who has more authority and responsibility over others. As a result, the authority and responsibility to discipline can only be given to the one who is capable of carrying it out.
1. Husbands as de Facto Qawaamoon
The differences between the genders include physical, physiological, emotional, and psychological ones. “Islam defines the roles and locates the spheres of activities for men and women according to their nature.” The Qur’an states, “He has created everything and has meted out for it a role.”
As such the Qur’an, in the first half of verse 4:34, hints that the role of authority and responsibility to discipline is left for the man by referring to the husbands as “protectors.”(Husbands) are the protectorsAnd maintainers of their (wives)Because Allah has givenThe one more (strength)Than the other, and becauseThey support themFrom their means.Thus the righteous womenAre devoutly obedient and guardIn (the husband’s) absenceWhat Allah would have them guard.
The translator’s use of the term “protectors” in the first line of the aforementioned quote is in reference to the Arabic term of qawaamoon (singular: qawaam). Qawaamoon has been defined in various manners by different scholars and translators. Abul ‘Ala Maududi, has defined qawaamoon as “governors” and as “managers.”Qawaam “stands for a person who is responsible for the right conduct and safeguard and maintenance of the affairs of an individual or an institution or an organisation [sic].” “Thus man is governor, director, protector and manager of the affairs of women,” reasons Maududi.
By translating qawaam as such, Maududi has been able to conclude that “the family has been organized in such a way as to have a governor.” Maududi also states that the man’s “position in the family is that of a provider…he is in charge of the family, and [is] its protector and is responsible for its conduct and affairs.”Maududi reaches the conclusion that the responsibility of the family is on the man by analyzing various verses of the Qur’an and by analyzing numerous ahadith. Maududi begins his reasoning by quoting the Qur’an in verse 2:228 that “men are a degree over them (women).”
Thereafter, in analyzing verse 4:34, Maududi states:Men are superior to women in the sense that they have been endowed with certain natural qualities and powers that have not been given to women or have been given in a lesser degree, and not in the sense that they are above them in honour and excellence. Man has been made…(governor) of the family because of those natural qualities which he possesses, and woman has been made his dependent for her own safety and protection because of her natural drawbacks.To further strengthen his argument that the husband has the authority to discipline the wife, Maududi quotes a hadith which refers to the husband as the “ruler over his wife and children, and is answerable to Allah for the conduct of their affairs.”
Logic implies that if the husband could be held responsible for some of the actions of his wife and children, then surely he has the authority to discipline them if they were to act in a manner for which the husband may be held responsible. Depending on the type of conduct, the husband may have either the duty or an option to exercise the disciplinary process.These sources indicate, according to Maududi, that the husband has the responsibility over the family and the authority to govern its affairs—and as a result, the authority to discipline when the need arises.
Subsequently, in the middle part of verse 4:34, the Qur’an defines the righteous women as those that are obedient. As discussed later, there is disagreement between scholars as to whether or not obedience here refers to a wife being obedient towards the husband (and not just being obedient to Allah alone). However, the majority of the scholars indirectly link obedience to the husband as being required for maintaining a harmonious Islamic marital relationship.In conclusion, the point that concerns us the most is that—first, by limiting only men as the qawaamoon over women and secondly, by portraying a righteous wife as being one who is obedient to the husband—it is the husband who has the authority to discipline the wife according to the procedure outlined in the “Discipline Passage,” and not vice versa.
It is important to note that the method of reconciliation outlined in the passage is the only course of disciplinary action available for the husband over his wife (for acts of nushooz). This view, promulgated by Maududi, is generally regarded as the opinion of the majority of the scholars of Islam.Before moving on to the minority opinion, it would be wise to point out that in Islam “all schools of law are unanimous that verse 4:34 obligates the man to always be financially responsible for his female relatives.”
2. Minority Opinions on Qawaamoon
Azizah Y. al-Hibri, a contemporary minority commentator states that men gain “qawaamoon” status over women only if they satisfy two preconditions. “First the male must be the financial maintainer of the woman.” If the husband “is not carrying [the] financial responsibility then he has no standing to interfere in [the wife’s] affairs by providing unsolicited advice.” “Second, the male must also possess qualities…that the advised woman needs to reach a particular decision but lacks.”
As for the Qur’an stating that the men are qawaamoon over the women, al-Hibri states that the Qur’an was revealed in a world that is and “continues to be highly patriarchal.” In her opinion, the verse provides for the maintenance of the women and makes clear that “maintenance alone does not suffice for a man to claim [the qawaam status] over a woman.” In al-Hibri’s view, unless the two preceding conditions are fulfilled by men, “they may not even presume to provide advice or be caretakers [qawaamoon].”
Thus, a husband who does not acquire the qawaam status cannot discipline his wife. This is in clear distinction to the opinion of the majority of Islamic scholars who place the qawaam responsibility unqualifiedly on the husband. Al-Hibri’s argument is based on her belief that “there is no basis in the Qur’an for the patriarchal assumption of superiority, or in the authoritarian interpretation of [qawaamoon].”There is also a third completely different view espoused by another contemporary Western commentator. In the view of Maysam L. al-Faruqi, the first half of the verse (dealing with qawaam) is unrelated to the latter half of the verse which deals with disciplining the wife. In her opinion, the qawaam clause gives the husband the responsibility of financial maintenance of his female relatives.
She states, “The first half [of the verse 4:34] deals [with] financial responsibility, which falls on the shoulders of all men in relation to all of their female relatives.” To her, the qawaam issue is a conclusion to the subject matter of the preceding verses. In her opinion, the second half of the verse deals with a separate issue of disciplining the wife based on the concept of nushooz. She concludes that the verse is divided into two independent parts that are not interrelated. For that reason, in her opinion, the concept of qawaam should be completely ignored when discussing the disciplinary process.
It is important to reemphasize that her opinion is in contrast to the interpretation of the overwhelming majority of the scholars of Islam. Even al-Faruqi agrees that the vast majority of scholars believe that the two parts to the verse are interrelated and that the latter part of the verse is a logical continuation of the first part of the verse. Since the overwhelming majority of scholars agree that the verse is interrelated, we will treat is as such.
III. The Historical Context of Verse 4:34’s Revelation (Bassam)
A. The Significance of Sabab ul-Nuzool from an Islamic Jurisprudential Perspective
The sabab ul-nuzool (plural: asbaab ul-nuzool) is defined as the “cause of revelation,” referring to an historical event or occurrence that caused the revelation of a particular part of the Qur’an. The cause can be specific to a single Qur’anic verse, a collection of verses, or an entire chapter. Multiple causes can exist for one revelatory event as well. Nevertheless, not all of the Qur’an can be matched to a cause of revelation. In fact, the majority of the Qur’anic text lacks such causation. Ultimately, the statements and biography of the Prophet Muhammad reveals whether a cause of revelation exists. Such a cause is described in terms of a particular incident.
The first step to ascertain whether an incident acted as a cause of revelation is to determine whether the incident actually occurred. This authentication applies the same rigorous methodology as used for hadith classification. A primary condition under this methodology is that the person initially reporting the incident must have been present “at the time or occasion” of the incident’s occurrence. If no such connection exists between the incident and the reporter, then the existence of the incident itself is suspect.
These rules articulated by the scholars to authenticate the reliability of the incident’s occurrence parallels the Prophet’s detailed guidance as to what constitutes a revelatory cause once the incident becomes proven. For such a cause to exist, it must have been a specific historical event, occurrence, or question that the verse(s) addresses. “Guiding mankind” serves as an example of a cause that is too general for sabab ul-nuzool purposes.
The incident also must have occurred shortly before the corresponding Qur’anic revelation, furthering the requisite causal connection between the specific incident and the revelation. An incident is not a cause of revelation if it occurs after the revelation itself. In other words, the revelation must be understood as in response to a particular incident for it to act as the cause of revelation.Once identified, the cause of revelation serves as a jurisprudential tool to analyze Qur’anic text. Such a cause provides analytical insight to Qur’anic language at three different levels.
First, and most obvious, knowledge of the cause allows access to the specific situation to which the Qur’an is responding. This level of analysis often helps clarify whether a textual command denotes an obligation, a recommendation, or a mere permissible act. Similarly, this causation level of analysis also helps determine whether a textual prohibition designates an illegality or a mere reprehension.
Second, understanding the cause indicates the specific people and/or the nature of the audience that the Qur’an contextually addressed. The audience often informs whether text applies to Muslims specifically or is of general application to Muslim and non-Muslim alike.Lastly, awareness of the cause often reflects the general conditions of the Arab society at the time. This becomes especially relevant since the Arabs’ customary linguistic usages and their nuances of expression were reflected in the Qur’anic language itself. The general societal conditions provide interpretative insight beyond the linguistic nuances as well.
These conditions and peculiarities of Arab customs commonly offer solutions to some of the doubts and ambiguities in the text that would otherwise be difficult to understand. In other words, “the causes of revelation are fully cognizant of the customary practices of Arab society and the relationship, if any, of such practices to Qur’anic legislation.”Ultimately, all three analytical levels embodied in the cause of revelation present an understanding of the legal historical context necessary to accurately interpret the related Qur’anic passage.
B. The Sabab ul-Nuzool of Verse 4:34
The revelation of verse 4:34 occurred in the Madani period to a society that was still deep in misogynistic norms from the pre-Islam/jahiliyyah (ignorance) days. Wife abuse generally and wife beating specifically ran rampant. Numerous wives complained to the Prophet about the abusive treatment they received from their husbands.
The Prophet became incensed by these abusive habits of the early Muslim husbands, chastising such behavior accordingly and prohibiting wife hitting of any kind. Although no Qur’anic revelation spoke specifically to the issue of wife abuse as of yet, he found this behavior particularly disturbing in light of the general Islamic descriptions of the harmonious Islamic marital relationship (as explained earlier).Not only did he speak out against this abusive behavior, but his dealings with his wives reflected the deep love and respect that he had for them—relationships that were free from abuse.
The Prophet was consistent in word and deed, establishing his emulative example through both avenues. He asserted, “The best among you, are those who are best towards their wives, and I am the best among you in that respect.” Further, he never raised his hand against any of his wives.One particular incident of wife abuse became the cause of verse 4:34’s revelation. One night in Madinah, a woman left the marital home and went to the Prophet complaining that her husband had severely slapped her. This episode of wife abuse especially bothered the Prophet and he decided to take action beyond chastisement.
To prohibit this despicable practice, the Prophet empowered the abused wife with the right to qisas (a form of equitable retribution) from the husband for the abuse inflicted. As word spread of this Prophetic injunction, husbands immediately complained. They protested this ruling, allowing their wives to gain an advantage in the marital relationship, as unfair being not rooted in the Qur’an, thus bringing the issue to the fore. The Prophet ultimately advised the woman to remain separated from her husband until he received divine guidance through revelation with regards to this matter.
The Prophet subsequently sought such revelation in earnest.
In response, verse 4:34 was revealed to provide a specific scheme of spousal discipline for husbands that categorically prohibited wife abuse, like that experienced by the woman described above. Hitting one’s wife however was not absolutely banned as the Prophet initially commanded. “The Prophet himself stated when he received the revelation that ‘Muhammad wanted, but God did not want (to order a flat ban on hitting one’s wife).’” As we shall discuss later, the verse’s articulation of hitting though is unlike the conventional understanding of the term and does not even remotely approach wife abuse.Understanding the cause of verse 4:34’s revelation illustrates that the verse does not sanction hitting one’s wife so much as eradicating any Islamic legitimacy for wife abuse/domestic violence.
Even as a last resort in the disciplinary process towards marital reconciliation, the verse severely limits “both the act and concept of ‘hitting,’ so as to empty both from their harmful content.” The verse serves in essence “not [as] a license but rather a restriction on the prevalent male violence” inflicted in a marital relationship. In light of this historical context, we shall now analyze the specific disciplinary scheme provided in the “Discipline Passage.”
IV. The “Discipline Passage”
A. Nushooz (Bassam)1. “Disobedience” as a Working Definition
The word “nushooz” has many meanings in Arabic. Taken literally, it means “to rise above, or act superior to.” Scholars have broadened the linguistic meaning extensively to interpret the passage, defining nushooz as opposition, rebellion, or discord. As mentioned above, ‘Abdullah Yusuf Ali translates the term as “disloyalty and ill-conduct.” While any translation of this term requires further analysis to accurately understand it, “disobedience” is more precise of a definition when taken in light of the passage itself.
As discussed later, the passage clearly stipulates that if the wife returns to obedience, the disciplinary recourse must cease. Again, as addressed later, the passage also provides that the discipline can occur only if the wife is disobedient or if the husband fears her disobedience. Nushooz thus implies disobedience, and we use it as the working definition.
Defining nushooz as disobedience begs two questions crucial to any meaningful understanding of the term: disobedience to whom? and disobedience in what sense?
We address the former first.
2. Disobedience to Whom?
A debate exists amongst the jurists as to whom the wife’s disobedience of the “Discipline Passage” refers—disobedience to the husband or disobedience to God alone. This difference of opinion arises from the fact that the passage does not explicitly indicate to whom obedience is due, leaving scholars to infer this through recognized juridical sources and established methods of interpretation. Traditional jurists typically hold the majority opinion that disobedience here is to the husband while more contemporary jurists often support the minority opinion that disobedience is to God alone.
It is important to note that disobedience to the Prophet is tantamount to disobedience to God and we shall use the latter to include the former.
a. Disobedience to the Husband
The traditionalist focus of the disobedience as to the husband emerges from the divine status of qawaam (discussed earlier) given to men with regards to women generally and husbands with regards to their wives specifically. Because of the rights and responsibilities thus given to husbands by God, their wives are not to disobey them.Many sources are cited to justify this view. For example, the Prophet pronounced, “If I were to command anyone to prostrate before anyone but God, I would have commanded the wife to prostrate before her husband. By God, a woman cannot fulfill her obligations to God until she fulfills her obligations to her husband.”
The consideration itself of the husband with regards to such prostration symbolizes the exalted status given to them. Prostration implies obedience and many traditional jurists surmise that the closeness to prostration given to husbands entitles them to such obedience nonetheless. Another hadith states, “If a woman prays five [times a day], fasts Ramadan, obeys her husband, and guards her chastity, she will enter Heaven.” Yet another one reveals, “Any woman who dies while her husband is pleased with her enters Heaven.”
Traditional jurists rely on such ahadith to conclude that a wife’s obedience to her husband is obligatory; her disobedience, in turn, is a sin.While traditional jurists emphasize nushooz as a wife’s disobedience to the husband, they duly recognize that such disobedience is not absolute. The wife must not disobey her husband when he preserves the dignified position articulated by God and emphasized by the Prophet. In this context, the husband undermines his dignified position by demanding of his wife an action that is prohibited in Islam. For example, a husband’s order to his wife not to pray the five canonical daily prayers as ordained under Islamic law constitutes such an instance. If such a demand is made, the wife’s refusal to comply is not the disobedience articulated in the “Discipline Passage.”Stated differently, “obedience to Allah is of far greater importance than obedience to the husband and has precedence over it.”
This means that when the two forms of disobedience conflict, the wife is not only free from discipline in not following the latter, but she has a positive duty to the former—obeying God above all else. Failing to do so is a sin. The Prophet eloquently articulates this principle in the authentic hadith, “There is no obedience to the created if it involves disobedience to the Creator.” Ultimately, the traditionalist view holds that the wife’s disobedience to her husband is subject to the “Discipline Passage” only if obedience to him does not disobey God.
b. Disobedience to God Alone
Contemporary jurists agree with the traditionalist view that obedience to God reigns supreme; however, they disagree as to whether the “Disciplinary Passage” contemplates a wife’s disobedience to her husband. They hold firmly in the negative, asserting that the passage only authorizes the husband to discipline his wife when she is disobedient to God and God alone. The husband is not entitled to his wife’s obedience to him. They arrive at this conclusion by engaging the Islamic sources specifically and fundamental Islamic principles generally.The contemporary view espouses that the Qur’an and the Sunna do not endorse or authorize a wife’s obedience to her husband.
The Qur’an deliberately does not include any statement authorizing a wife’s obedience to her husband. It endorses obedience only to God. Furthermore, such contemporary jurists propound that the Sunna does not call for a wife’s obedience to her husband. They attack hadith listed by traditionalists that reflect such obedience as unreliable and unauthentic.The contemporary jurists also claim that the fundamental Islamic nature of the marital relationship supports their view of a wife’s obedience only being to God.
As previously discussed, the Islamic marital relationship is built on love, compassion, friendship, tranquility, and mercy exhibited between the spouses. To impute a wife’s obedience to her husband into this relationship is to contravene these virtuous qualities. Such obedience implies a relationship in which the husband is superior to the wife, one that is irreconcilable with the Islamic marital relationship of companionship and compassion.
These jurists assert that God is superior to both husband and wife (both are equally inferior to Him) and neither is superior to one another. In other words, the fundamental qualities of the Islamic marital relationship trump any notion of a wife’s obedience to her husband thus rendering such obedience patently false. Some proponents of this view even allege that to define “obedience” in terms of what a wife owes to her husband borders on shirk. The recognition by the majority that obedience to God trumps obedience to the husband does not mitigate the egregious nature of this offense.
The “Discipline Passage” thus refers to the wife’s obedience to God and not to the husband. In essence, according to the contemporary view, the “Discipline Passage” applies only when a wife is disobedient to God.3. Disobedience in What Sense?Another long-standing debate amongst jurists exists with respect to the scope of the wife’s disobedience that applies to the “Disciplinary Passage.” This passage does not define the scope explicitly, allowing for scholarly differences in this regard.
The majority opinion describes the wife’s disobedience in general terms, while the minority opinion limits such disobedience to sexual matters only.
a. Disobedience Generally
Jurists who declare that the “Discipline Passage” applies to a wife’s disobedience for matters generally often emphasize that the Islamic legal sources do not limit such disobedience accordingly. Whether seen as disobedience against God or against the husband, the passage does not explicitly limit discipline of a wife to only sexual disobedience. This view’s proponents argue that no where in the Qur’an or Sunna does such a limitation exist. As a result, jurists define disobedience broadly. For example, the great exegete Ibn Kathir states that a wife’s disobedience occurs “when she acts as if she is above her husband, disobeys him, ignores him, dislikes him, and so forth.” These instances clearly go beyond sexual matters.Although broad in scope, this view of a wife’s disobedience referenced in the “Discipline Passage” is not without limitation.
To justify discipline by the husband, the wife’s disobedience must not be trivial. More precisely, the disobedience worthy of discipline means the type of behavior on the part of the wife which is so disturbing for the husband that their living together becomes difficult. The disobedience cannot be ex nihilo. Jurists thus typically limit the wife’s disobedience acknowledged in this passage to the following four categories:
1. She does not beautify herself for her husband when he desires that from her.
2. She disobeys her husband with respect to coming to his bed and she refuses torespond to his sexual needs.
3. She leaves the house without his permission or without any legal right to do so.
4. She does not perform her obligatory religious duties, such as failure to performher daily prayers, failing to fast Ramadan, or any other obligatory act of Islam.
b. Disobedience Limited to Sexual Matters
The jurists who limit the wife’s disobedience to sexual matters only proclaim that any other form of disobedience does not justify her husband’s discipline. Jurists use this narrow interpretation of disobedience to further avoid trivial complaints by the husband as a justification for discipline, making the wife’s disobedience required more objective than the majority opinion.
Such jurists commonly categorize sexual disobedience as in regards to either sexual access or certain types of sexual misconduct outside of marriage.Sexual access refers to the Islamic right that a husband has to engage in conjugal relations with his wife. One hadith that establishes this right states, “If the man asks his wife to come to his bed and she declines, the angels will keep cursing her until the morning.”
To deny the husband this right to sexual access constitutes sexual disobedience.
Furthermore, jurists deem the right to sexual access exclusive between husband and wife. In the extreme, if a wife allows one other than her husband to have sexual access to her, then she engages in the sexual misconduct of zina (adultery) and its punishment lies in Islamic criminal law and thus outside the scope of the “Discipline Passage.”
Therefore, this passage applies to the sexual misconduct “reprehensible enough to justify action, but not the punishment of adultery.” Such a reprehensible act refers to behavior falling short of adultery, in which a wife makes some sexual advances to someone other than her husband. To engage in such an act represents sexual disobedience.As a point of agreement, both the majority and the minority opinions acknowledge obedience to God as a fundamental limitation to their respective views.
As indicated earlier, the “Discipline Passage” applies to a wife’s disobedience only if her obedience does not disobey God. For the majority, the wife’s disobedience in matters outside the sexual realm typically justifies her husband’s discipline. An example of a wife’s disobedience that does not justify discipline would be where the husband commands her not to fast during Ramadan and she refuses to oblige. Her obedience to her husband (by not fasting) would require her to disobey God and is thus impermissible.
For the minority, the wife’s disobedience only justifies her husband’s discipline when the disobedience is in sexual matters. An example of a wife’s disobedience (regarding sexual access specifically) not worthy of discipline would be where the husband demands his wife to engage in conjugal relations during her menses and she refuses to comply. Again, her obedience to her husband (in having sex) would require her to disobey God and is thus prohibited. In essence, Islam mandates obedience to God above all else and obedience in any other form must fall subservient.
4. “Fear” of Disobedience
Despite the Qur’anic language of the “Discipline Passage” explicitly stating, “On whose part ye fear nushooz,” an opinion exists that the passage requires actual knowledge of the wife’s disobedience by her husband before he may discipline her accordingly. This minority opinion’s obvious inconsistency with the Qur’anic language itself makes it highly suspect and thus rejected by the overwhelming majority of jurists.
The predominant opinion finds a husband’s fear of his wife’s disobedience sufficient to warrant discipline. To require the husband not to discipline the wife until after she commits a disobedient act runs contrary to the passage’s goal of marital reconciliation. By disciplining the wife before she engages in disobedience, discipline has a higher likelihood of reestablishing marital harmony than if done after the fact. To wait until after the disobedience will perhaps be too late. Although the dominant view allows for such “pre-disobedience” discipline, it stipulates important guidelines as to when a wife’s behavior reaches the level of “fear” as articulated in the “Discipline Passage.” A husband’s fear of his wife’s disobedience must be well-grounded in reality and not based entirely on his whims and suspicions.
While not requiring objective proof, the “fear” expressed in the passage signifies “subjective but certain, knowledge or judgment about something.” Essentially, a husband must have a genuine fear of his wife’s disobedience to discipline her and nothing less, so as to avoid discipline based on his paranoia.
B. The Approach to the “Discipline Passage” (Bassam)
1. The Sequential Approach
The majority of jurists hold that the language of the “Discipline Passage” itself reveals a sequential approach to the discipline authorized. For them, the conjunction wa (”and”) used between the various types of discipline signifies its chronological order. This approach guides a husband in disciplining his wife that is disobedient, regardless of how disobedience is defined. In following the disciplinary process, he must first admonish his wife, then desert her in bed, and finally physically discipline her as a last resort to marital reconciliation.
2. The Non-Sequential Approach
The minority of jurists see the disciplinary approach under the “Discipline Passage” as not being absolutely sequential. For some, the circumstances dictate the type of discipline used, based on a sense of proportion according to the nature and the extent of the disobedience involved. For others, the sequential approach is only one of three possible interpretations, leaving it to the husband to exercise any of the three he wishes. Such minority opinions are heavily disfavored in light of the strong textual evidence for the sequential approach. We adopt the sequential approach accordingly and address below each stage of the disciplinary scheme as reflected in the “Discipline Passage.”
C. “Admonish” the Disobedient Wife (Syed)
Admonishment, the first stage of wife discipline, is a rather vague term. At first, one may believe that the right to admonish is the first step of punishment. It has to be made clear that the discipline process is not a punitive measure; rather it is an attempt to prevent the continuance of nushooz.
In other words, the husband cannot punish the wife for her past acts; rather he is supposed to stop her from continuing her actions. One may be led to believe that admonishment extends to scolding, yelling, and using profane language. The ahadith show that this is a false notion. A man once asked the Prophet regarding the rights a wife has over her husband. The Prophet answered, “To feed her when you eat, clothe her when you buy clothes for yourself, refrain from striking her face or cursing her and to not abandon her except in the house.”
This hadith clearly forbids the husband from cursing at his wife without exceptions. Admonishment is not a stage where the husband should be harsh towards his wife. Abdul Rahman al-Sheha defines admonishment as “the stage of advice, counseling and warning against Allah’s penalty.” He sees admonishment more as a helpful gentle reminder to a disobedient wife about the importance of following Islamic teachings. In al-Sheha’s view, the stage of discipline “is a very kind and easy one.” Others have explained admonition as “a cure that is gentle and mild.” “Its goal is to replace estrangement and rebellion with love, compassion and togetherness in obedience to Allah Most High.”
The word admonition has been defined by other scholars as the “advising and reminding one of the outcome[s] of ones actions,” or as a reminder in a way that “softens their hearts by reminding them of the rewards or punishments.” An explanation of what that means can be summed up as: The husband makes her fear Allah Most High. He reminds her of what Allah has obligated upon her concerning his rights and obedience. She is to be told the results of her sin and disobedience and how she then forfeits her rights of maintenance and clothing. And she is to be told of how that permits him to strike her and boycott her. A husband should not admonish the wife with anger. Islam generally frowns upon expressing anger.
The issue of anger is addressed in the ahadith. A man once asked the Prophet for advice. The Prophet replied, “Do not become angry and furious.” The man asked (the same) again and again, and the Prophet said in each case, “Do not become angry and furious.” In another place, the Prophet is quoted as saying, “The strong is not the one who overcomes the people by his strength, but the strong is the one who controls himself while in anger.”
By implication, when admonishing the wife the husband should not become angry and should not be furious at her. By controlling his anger, the husband would show strength and will be more likely to fulfill his religious obligation of gentle admonishment. Thus instead of showing anger, the husband should try to advise the wife by having a conversation with her. They should discuss the disobedience and figure out a scheme to rectify the situation. In order for the admonishment to be truly effective, the husband has to be a person of good character, at least in comparison to the wife.
If the husband does not practice what he preaches, it is unlikely that his advice would be effective. When admonishing the wife, the husband must remember that the purpose is to restore the marital harmony and tranquility which has been breached. The ultimate purpose of admonishment (and the entire discipline process) is reconciliation and not punishment. And of course, “if a mere light admonition proves effective, there is no need to resort to a severer step.”
However, if admonishment is ineffective, the husband may move on to the next prescribed step: “refuse to share [her] bed.”
D. “Refuse to Share the Bed” (Syed)
There are times when verbal admonition may not be effective in preventing the wife’s disobedience. For example, the wife may increase her disobedience as a means to spite her husband. In the case that admonishment is unsuccessful the husband would have to proceed to the next step. The next step instructs the husband to boycott or to “abandon” the wife in “bed.” In other places, the phrase is translated as “avoiding them in sleeping places.” There are varying interpretations as to the exact definition of this segment. An early Islamic scholar, Ibn ‘Abbas said, “The abandonment refers to not having intercourse with her, to lie on her bed with his back to her.”
Ibn ‘Abbas is reported to have added that the husband should try “[n]ot to speak with her or talk to her.” Abdul Rehman al-Sheha, in explaining this part of the verse, asks the husband “to leave the wife’s bed.” He goes on to explain that if the husband does sleep in the same bed as her, he should turn his back to her, not touch her, nor talk to her, and not have intercourse with her.
According to al-Sheha, this step combines both strictness and kindness and that the practice is harsh on both the husband and the wife. It is significant to note the wide spectrum of phrases used by numerous scholars to define the part “abandon them in bed.” These definitions include: ” ‘turning one’s back on them in bed,’ abandoning sexual activity in bed, ‘abandoning the marital bed only,’ ‘staying in the marital bed…but abandoning sexual activity,’…[even] ‘engaging in sexual activity, but without verbal communication,’ or ‘engaging in sexual activity and communicating, but in a tough manner.’ “It has also been mentioned that the husband should try and sleep in a different room because the verse can also be interpreted to mean “abandon them in places of sleep.”
The husband under this interpretation should sleep somewhere other than the bedroom because the bedroom is the place of sleep. This method is generally discouraged because the discipline process should be a private matter between the husband and the wife. By sleeping in a separate room, the discipline process could become conspicuous to other family members and to the couple’s children. There is another opinion that was floated by a scholar that the phrase translates as, “Tie them (the wives) in bed.”
Despite this being the opinion of renowned scholar al-Tabari, mainstream scholars consider this assessment a grave error on the part of the great scholar. Other than that, the scholars unanimously agree that at the very least the verse requires the husband to refrain from sexual relations with his wife. Generally, scholars also tend to agree with Ibn ‘Abbas’s assessment that the husband should refrain from talking to his wife.
The Qur’an, in verse 4:34, is silent about the specific details regarding the abandonment of the wife in bed. For one, it does not reveal how long the step should be administered for. The minimum duration can be extremely short. If the wife were to “return to obedience” the discipline process must cease immediately. In order to determine the maximum duration of this disciplinary step, one would have to look at other chapters in the Qur’an and in the ahadith. The Prophet has been quoted as saying, “It is not lawful for a Muslim that he should keep his relations estranged with his brother (i.e. another Muslim) beyond three days.”
In terms of boycotting and ignoring the wife, this hadith limits the husband’s actions to a maximum of three days. After the third day, the husband shall not continue to ignore his wife. This hadith however is not seen as limiting the husband from continuing to abandon the wife in bed. In the Musnad of Imam Ahmad, it is reported that the Prophet separated from his wives for a period of one month.
This act of the Prophet implies that ceasing sexual relations with the wife can extend to a period longer than three days. According to the Qur’an, the maximum duration of a husband’s refrain from sexual relations with his wife is four months. The Qur’an states, “For those who take an oath of abstention from their wives, a waiting period for four months is ordained; if then they return, Allah is oft forgiving and most merciful.” It is imperative to point out that this time limit is set for those people who vow to not have sexual relations with their wives. It is also important to note that in the case of disciplining the wife, there is no reason for the sexual boycott to last four months. However if it were to last a long time, then four months is the maximum limit.
When enforcing the sexual boycott (as with any other provision of the disciplinary process), it is important to not lose sight of its purpose. The purpose is to bring back harmony and tranquility to the marital relationship. A sexual boycott lasting more than a few days would likely make the relationship less harmonious and less tranquil. As a result, it would be imprudent and counter productive to continue with it. A sexual boycott, thus should last only as long as it helps lead towards reconciliation. If the boycott does not lead to reconciliation (or if it divides the couple further), the husband should move on to the next disciplinary step: “spank them (lightly).”
E. “Spanking” (Bassam)
The greatest controversy and misunderstanding of the “Discipline Passage” is in the final stage of the disciplinary process—”spanking” the disobedient wife. The reconciliatory purpose behind the passage’s “spanking” provision helps debunk the misconceptions surrounding this disciplinary stage. A husband is not to “spank” his wife if his motivation in doing so is other that such reconciliation. “Spanking” out of anger, for punishment, or for retaliation is prohibited, running contrary to the reconciliatory rationale. Similarly, a husband cannot “spank” his wife to humiliate her, cause in her fear, or to compel her against her will. Islam permits “spanking” to remind the wife of her disobedience and to bring her back to obedience so as to facilitate marital reconciliation.
Ultimately, wife abuse clearly makes reconciliation “impossible to achieve” and thus it is categorically condemned. As the Prophet unequivocally demanded, “Never beat God’s handmaidens.” While the jurists agree that marital reconciliation underlies the “spanking” disciplinary technique leaving no room for wife abuse, there exists a debate amongst them as to whether the passage permits physical discipline or whether it signifies something else entirely. The majority opinion holds that the passage permits physical discipline. The minority opinion, on the other hand, does not.
We discuss each perspective in turn, the former first.1. Allowing Physical Discipline. To understand the physical discipline allowed by the majority, the term “spanking” must not be left to its common usage. The term itself conjures images of action much more severe than what the passage permits. “Spanking” has even been defined as a technique used “as for punishment,” contradicting the requisite reconciliatory intent for the discipline. The majority thus describes “spanking” as engaging in “a non-violent symbolic act” rather than anything spanking entails.
In essence, “spanking” in the “Discipline Passage” is a term of art.
In the Prophet’s “Farewell Sermon,” he presented the general limitation on “spanking” that jurists subsequently used. Specifically, he proclaimed that “you [men generally and husbands specifically] are allowed to physically discipline them [women generally and wives specifically] lightly.” This stipulation again stresses reconciliation. In light of this Prophetic wisdom, as well as others within the Islamic sources, jurists articulated strict qualifiers to “spanking” to ensure compliance with the physical discipline that Islam tolerates.
These qualifiers are crucial, for in their absence, husbands “may interpret the matter in their own way, which can lead to [un-Islamic] excesses and real abuse.”
a. Where May the Husband Physically Discipline His Wife?
The physical discipline of the wife must occur in strict privacy to where no one else is aware of the act. The husband specifically must not discipline the wife in front of anyone else, discuss the discipline with her with others present, or mention the discipline to others. The private nature of the discipline serves to protect the wife from potential humiliation encountered by others witnessing or becoming aware of such discipline. Moreover, a public display would perhaps detrimentally disturb the power dynamics between the wife and her child. The child might not duly respect the mother, knowing that she was disobedient and physically disciplined accordingly. Such a disturbance strikes at the heart of the family structure with potentially severe ramifications. Thus, like the preceding stages of discipline described above, Islam prohibits the husband from physically disciplining his wife in any public fashion.
b. With What May the Husband Physically Discipline?
In light of the Prophetic injunction to only physically discipline the wife lightly, the husband must use a gentle object that ensures the symbolic, non-violent nature of the act. As one of the leading companions of the Prophet and an early Muslim jurist, Ibn ‘Abbas offered guidance in this regard, using a siwak/miswak (a soft small fibrous twig used as a toothbrush in the Arabian Peninsula) for such disciplinary purposes. As an alternative to the siwak, a handkerchief or the like may be used. Some jurists allow using the hand while most discourage it, relying on Ibn ‘Abbas’s insight.
In essence, the type of disciplinary object used is only limited by considering the physical effects that it has on the wife. An object that typically causes bodily harm to the wife may not be used. Jurists prohibit whips and clubs as a result. Similarly, the husband may not use an otherwise benign object in a physically harmful way.
Islam thus prohibits a husband from using any object to bruise (or in any way leave a mark on) his wife, to break a bone, etc. Such behavior by the husband is indeed more indicative of wife abuse than anything reconciliatory.
c. Where on the Body May the Husband Physically Discipline?
Just as the husband may not use an object tending to cause bodily harm, he may not physically discipline his wife in places that could result in such harm. Jurists forbid “spanking” sensitive places like the abdomen accordingly.
Any place that the wife is subjectively sensitive to or that she is experiencing pre-existing pain is equally off-limits. In addition to this general “anti-harm” requirement, Islam prevents the husband from “spanking” his wife’s face under any circumstance. Jurists derive this prohibition from the hadith which categorically states, “If you fight, avoid striking the face, for Allah created Adam in his image.” Since the Prophet forbade striking the face while fighting, then he implicitly, a fortiori, prohibited the husband from “spanking” his wife’s face as well.
d. For How Long May the Husband Physically Discipline His Wife?
The husband may physically discipline his wife no longer than necessary to bring her back to obedience and thus reconcile the marital relationship.
If it has become clear that the discipline is not working, then the husband must cease and resort to arbitration, as described later, for marital reconciliation. Therefore, this end point does not allow the physical discipline to be habitual in nature; the husband may not continually physically discipline his wife. The reasonable standard dictates when the occasion for physical discipline has been exhausted.
e. Allowing but not Endorsing Physical Discipline
Even with the aforementioned strict qualifiers to “spanking” in place, Islamic law does not favor the resulting act, however symbolic. From an Islamic juridical perspective, the physical discipline’s permissibility does not imply its desirability.
In fact, the “Discipline Passage’s” delineation of “spanking” as the last disciplinary resort implies its undesirability. The Prophet himself, as indicated earlier, desired a ban on the husband’s physical discipline of his wife and even when the passage was revealed to him, he “allowed it very reluctantly,” vehemently disliked to the physical disciplinary recourse.
This Prophetic aversion led many jurists to officially label the act makrooh (abominable), legally signifying the allocation of a divine reward for refraining to engage in it yet no divine punishment if one was to do so. Some jurists hesitate to legally categorize the husband’s physical discipline of his wife as makrooh; however, the consensus of the jurists acknowledges this symbolic act as “the minimal standard below which no Muslim [husband] may stoop.” While the husband may resort to the Islamic minimum standard, the Prophetic perfect paradigm is always better to emulate.
As mentioned earlier, the Prophet never hit his wives regardless of the circumstances, despite his allowance to do so under the passage. Ultimately, since the Prophet disliked the husbands’ physically disciplining their wives and being that he never did so, to refrain from such discipline is indeed preferable and more graceful.
2. Not Allowing Physical Discipline
According to the minority view, the last resort under the “Discipline Passage” portrays something less than any form of physical discipline. This view relies on the fact that the Qur’an ascribes about 17 different meanings for the word “daraba” (translated by Yusuf Ali as “spank”). The minority asserts that to understand daraba as allowing a husband to physically discipline his wife contradicts the teachings of the Prophet in this regard.The only way to eliminate this contradiction is to define daraba differently, using one of the other Qur’anic definitions more reflective of the Prophetic reality. One common disciplinary alternative describes daraba as enjoining a husband “to stay away from a discordant wife in the hope that this will let her realize an impending separation and divorce.”
The minority see this understanding of daraba completely consistent with the Sunna and thus more accurate than that of the majority jurists.
3. Overview of the Wife’s Remedies if the Husband Transgresses
If the husband transgresses in physically disciplining his wife, by not following the limitations indicated above, then she becomes entitled to numerous remedies depending on the circumstances. The husband’s transgression in any way enables her to seek a divorce. If the physical discipline causes bodily harm to the wife, then she is entitled to damages. Such a transgression is actionable as a criminal offense as well.Moreover, the wife is under no Islamic obligation to accept her husband’s physical discipline even if it comports to the Islamic guidelines. She has the right to a divorce if she so chooses, forgoing any further attempt at marital reconciliation. In other words, “physical discipline must not be employed as a remedy if a wife prefers to be divorced.”
F. “Returning to Obedience” (Syed)
The subsequent part of the “Discipline Passage” deals with women who return to obedience. The Qur’an says, “But if they return to obedience, seek not against them means (of annoyance).” This part of the verse emphasizes the fact that this verse is not about the man’s show of power or subjugation of women.
This verse orders the husband to not continue with the discipline stage if the wife returns to obedience. When she does return to obedience, the husband must “not seek against [her] means (of annoyance).” “In other words, as soon as the woman stops her [disobedience], the husband must stop his actions.”
This point is illustrated by the respected scholar Ibn Kathir. In his explanation of this part of the verse, Ibn Kathir states, “[W]hen the wife obeys her husband in all that Allah has allowed, then no means of annoyance from the husband are allowed against the wife.” “Therefore, in this case, the husband does not have the right to beat her or shun her bed.”In emphasizing the importance of stopping the discipline process, the verse concludes by reminding the married couple, “Surely, Allah is Ever Most High, Most Great.”
Ibn Kathir sees this as a reminder for “men that if they transgress against their wives without justification, then Allah…[being the wives’ Protector,] will exert revenge on those who transgress against their wives and deal with them unjustly.” It can be concluded from this interpretation that the husband must stop the discipline process if and when his wife returns to obedience. Not doing so would result in God’s punishment being inflicted on the husband. This veiled threat to the husband also emphasizes that the husband must be careful how and when he disciplines his wife. Improper use and abuse of the disciplinary process could result in God’s punishment of the husband.
V. Post-Disciplinary Arbitration (Syed)
In the case that the process outlined in the “Discipline Passage” fails to bring about reconciliation, the Qur’an provides a last ditch effort for the couple to save their marriage. Once the process of private reconciliation between the couple fails, arbitration in an attempt to save the marriage is suggested. The Qur’an states in the very next verse (4:35), “If ye fear a breach between them twain, appoint (two) arbiters, one from his family, and the other from hers; if they wish for peace, Allah will cause their reconciliation: for Allah hath full knowledge, and is acquainted with all things.”
The above verse is fairly straightforward in its application. “The plan [put forth] is to appoint one arbiter from the family of each spouse for this purpose. The two [arbiters] should try to probe into the real cause or causes of the dispute and then try to find a way out of it.” According to Maududi, the relatives of the individual spouses would make the best arbiters because they “know the true conditions of the spouses.”
The verse leaves vague the process of appointing arbiters, or in other words, “Who appoints the arbiters?” In Maududi’s interpretation, the failure to mention who should appoint the arbiters gives the aggrieved spouses (and their respective families) a free hand in determining how the arbiters are selected. Each spouse appointing a relative as his or her arbiter or the “leaders of the two families may take the initiative and entrust the work of reconciliation to two arbiters.” Maududi also leaves the option open for a court to appoint arbiters before taking further action (e.g. divorce proceedings).
There is a difference of opinion as to how much power the arbiters have. According to the Hanafi and Shafi’i schools of thought, the arbiters are not authorized to pass any final decree but may recommend measures for reconciliation, which may be accepted of rejected by the spouses. In Maududi’s personal opinion, “[I]f the spouses themselves authorize them [the arbiters] to effect divorce…or take any other measure, that [the arbiters] will be bound by that decision.”
However, in the opinion of other mainstream scholars including Hasan al-Basri and Qatadah, the arbiters are only authorized to enforce reconciliation and not divorce. Other Islamic jurists hold the opinion that “arbiters have the full authority to enforce their decision about reconciliation or separation whichever they consider to be appropriate.” In terms of legal Islamic history (or precedence), Caliph Uthman and Caliph Ali used to authorize the arbiters appointed by them (emphasis added) full powers to effect reconciliation or enforce separation as required. During the reign of Caliph Uthman, when the case of Aqil and Fatimah was brought to the court of Uthman, he appointed as arbiters Ibn ‘Abbas from the husband’s family and Muawiyah from the wife’s family. Uthman told them that they are authorized to cause separation between the couple if the circumstances require it.
Similarly Caliph Ali appointed arbiters and authorized them to either effect reconciliation or separate the couple. In Maududi’s opinion, “this shows that the arbiters as such do not possess judicial powers, but if at the time of their appointment, the authority concerned empowers them with judicial powers, their (the arbiters’) decision shall be binding and enforced like other judicial decisions.” In conclusion, arbitration is encouraged when previous attempts at reconciliation fail.
There is a lot of flexibility in the appointment of the arbiters. However, as the latter part of verse 4:35 suggests, resorting to arbitration for the purpose of reconciliation can only work if both parties (husband and wife) are hoping for peace and reconciliation. In the case of a spouse seeking to end the marriage or in the failure of reconciliation and arbitration, amicable divorce becomes the only available option for the married couple.
VI. Conclusion (Bassam and Syed)
As seen through the analysis of verses 4:34 and 4:35, Islam provides a comprehensive and systematized approach to wife discipline. This level of detail in the disciplinary process proves necessary considering what is at stake—the marital relationship itself. Moreover, to maximize the opportunity for marital reconciliation, Islam does not defer to the husband’s whims in wife discipline. Such whims are prone to abuse and ultimately failure in achieving marital reconciliation.
The husband is thus bound to follow the process outlined in the “Discipline Passage” accordingly.
In essence, the Islamic approach (of the majority opinion) to wife discipline for her disobedience involves first, admonishing the wife, second, sexually boycotting the wife, and, lastly, physically disciplining the wife through a non-violent symbolic act.
These types of discipline are to be administered sequentially. Furthermore, the husband is to cease discipline as soon as his wife reconciles with him. If discipline does not work to restore marital harmony, then the last-resort of arbitration should be used to bring it about. Ultimately, if arbitration fails, then the husband and wife should divorce amicably as Islam prescribes. One cannot overemphasize that the husband may only discipline his wife with the intent to reconcile with her.
Stated differently, wife discipline may only be used as a means to marital reconciliation. Wife beating not only contravenes this reconciliatory purpose but flies in the face of the Islamic marital relationship as a whole.
In the final analysis, wife beating is so antithetical to Islam that those who believe it endorses such behavior are misinformed or malevolent. We hope that this paper eliminates the former and marginalizes the latter accordingly.
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