Marriage, Domestic Leadership, and Divorce in Islam from the Perspective of Shaltūt.

Shaltūt addresses misconceptions regarding family issues, particularly marriage, domestic leadership and divorce, from an Islamic perspective.

In his works, Maḥmūd Shaltūt[1] believes that women play an essential role in developing a healthy family institution. He argues that Islam gives special attention to married life and its provision as it concerns a woman's role as a wife and a mother.^[2] Besides explaining the marriage dimension and the role of women in it from Islam's perspective, Shaltūt attempts to address misperceptions regarding several aspects related to family life, in particular marriage, divorce and the issue of domestic leadership.

Photo of Shaykh Maḥmūd Shaltūt

Marriage contract (ʿAqad) in Islam       

According to Shaltūt, Qur'ān places marriage as a noble institution on which the family is built and subsequently creates a community. A marriage must go through the ritual of nikāḥ (marriage contract) that contains the ʿaqad tradition of the ījāb (offer) and the qabūl (acceptance). It symbolises the reciprocal agreement of both husband and wife to live together in peace, love and mercy while establishing mutual rights and obligations.^[3] Accordingly, this is harmonious with the Qur'ānic message that explicitly refers to the marriage contract as Mīthāq Ghalīẓā or solemn covenant.^[4] Shaltūt also points out that this meaning of solemn covenant implies the seriousness of the contract and ties to Allah's faith, the Sharīʿah and its laws, proving that the marriage is not a light bond. Any mistreatment and exploitation of women are prohibited in Islam.^[5] Hence, in this case, Shaltūt maintains that the only legal marriage in Islam must be performed officially and publicly, not secretly, off the record or in the stipulated period, just like nikāḥ al-Sirrī (secret marriage), nikāḥ al-ʿUrfī (customary marriage) or nikāḥ al-Mutʿah (pleasure marriage).^[6]  Shaltūt also adds that to complete the ʿaqad, Islam legislates the practice of mahr (dowry), not in return for anything. Thus, Islam does not encourage too expensive and excessive mahr, which is not in the interest of couples. Instead, Islam promotes the reduction of the mahr and holds it simple, as recommended by the Prophet: “The best marriage (mahr) is the easiest one.”^[7]

Accordingly, Shaltūt also asserts that the legitimacy of ʿaqad would take into account the approval (riḍā) of all parties. In this case, both the future husband and wife, including the father's bride (walī), must consent to validate the marriage as enshrined in the verse of al-Baqarah, 2:232.^[8] Many aḥādīth indicate that a marriage requires the bride's consent before the solemnisation could take place.^[9] Shaltūt stresses that the failure to obtain the consent of the walī and the bride could prevent a marriage from continuing.^[10] From Shaltūt's standpoint, shūrā (consultation) is a way forward in finding a solution to this predicament by having the future bride and the parents sit down and discuss how to solve any crisis. By advancing the notion of consultation of all parties in legitimising nikāḥ, Shaltūt demonstrates his willingness to acknowledge women's voices and their preferences in the marriage's decision-making process. He also recognised the women's rights to disagree and positioned it in the same standing as the walī's consent.

In summary, it is also apparent that Shaltūt's opinion on the concept of riḍā in marriage is drawn from the ideas of Ibn Qayyim, who remarks that for a marriage to occur, the future bride's consent must be sought. Shaltūt later cites Ibn Qayyim, who notes that these arrangements are in line with the Sunnah of the Prophet, the regulations of Sharīʿah, and the interests of the Ummah.^[11] Subsequently, Shaltūt's views in this situation indicate his broader perspective of marriage, ensuring that marriage can occur and considering the tranquillity of the marriage in the long run.^[12] By his account, therefore, Shaltūt disagrees with the traditional view of majority jurists within the four schools of Fiqh when they opined that the guardian could marry off their virgin daughter without their permission. While according to Ḥanafī's madhhab, a daughter has the right to marry herself, even without her father's permission or the guardian, on the condition that the husband is suitable for her. Otherwise, the responsible person has the right to object.^[13] While others, primarily contemporary ʿUlamāʾ, have also validated Shaltūt's stance on disallowing marriage without their daughters' consent.^[14] Hence, Shaltūt's approach to this opinion fits squarely within the revivalist strand of thought among medieval and modern scholars such as Ibn Qayyim, ʿAbduh, al-Sibāʿī, and al-Qaraḍāwī. It is also the position of the modern Muslim marriage registry system today.^[15] Accordingly, these procedures for obtaining the bride's consent before marriage can proceed, demonstrating the relevance of Shaltūt's views in the contemporary Muslim world.

Domestic leadership       

Although the Qur'ān has stated in many places the equality of men and women in their rights, responsibilities and the upliftment status of women, Shaltūt also acknowledges that numerous Qur'ānic verses indicate otherwise. His arguments are drawn primarily from the verses of al-Baqarah 2:228[16] and al-Nisāʾ 4:34.^[17] However, in articulating the verse of al-Baqarah, 2:228, Shaltūt argues that the verse is not a testimony of men's authority or coercion against women but is restricted only to 'domestic leadership' or al-Riyāsah al-Baytiyyah.^[18] Therefore, in this case, the degree of men in this verse implies an additional responsibility of providing for the wife and her family's daily needs and serving as the protectors of the family. According to Shaltūt, this is the actual meaning of qiwāmah (responsibility) in the verse of al-Nisāʾ, 4:34. Shaltūt possibly believes in addressing the misperception that the meaning of qiwāmah indicates the preference (tafḍīl) of men over women. He further argues that God specifies in this verse; “what Allah has preferred one over the other” and not; “what preferred them (masculine plural) over others (feminine plural)” as a direct statement that the preference in this verse does not imply any superiority of men over women.^[19]

Shaltūt uses the analogy of the right hand's preference over the left to suggest the unique features of one body part relative to others. In other situations, the preference could be otherwise.^[20] By offering this analogy, Shaltūt might have intended to point out that both men and women possess unique qualities of masculinity and femininity. In Shaltūt's words, regarding the meaning of this preference, it is nothing more than the degree of supervision and care by the natural ability that a man has over the woman and by virtue of labour and work in collecting the money that he spends to fulfil the rights of the wife and the family.^[21] 

While Shaltūt views the verse on qiwāmah as a testament to men's domestic leadership in marriage, it does not indicate that men have absolute authority in decision-making; rather, it is exercised through consultation (shūrā) and the exchange of views between them. Shaltūt argues that this is the true meaning of this verse as outlined by Allah in the Qur'ān and practices known from narrations of the Prophet.^[22] Shaltūt clarifies this argument by referencing the verse of al-Baqarah, 2:233,^[23] on the encouragement of shūrā in stopping the decision on breastfeeding as a clear indication of mutual consent between husband and wife in determining their options.^[24] Accordingly, Shaltūt also rebukes those who claim that men have the authoritative power in the family decision-making process as ones who do not understand the true meaning of Qur'ān in the spirit of mutual companionship, love and tranquillity in married life.^[25] 

Shaltūt possibly drew a great deal of inspiration from ʿAbduh's work in 'Tafsīr al-Manār', where he concludes that the Qur'ān generally states that men and women have equal responsibility and have a similar capacity for emotional, mental and intellectual judgment. The only degree men have over women as ordained in the Qur'ān, which he coined as al-Riyāsah wa al-Qiwāmah (leadership and guardianship), is an additional responsibility in marriage relationships, protecting the wife as well as providing maintenance for the family^[26]. By his account, therefore, Shaltūt agrees with the view of ʿAbduh, which is also the position of other contemporary Muslim scholars, such as al-Būṭī, al-Sibāʿī, Ṭanṭawī, Muḥammad al-Ghazālī and ʿImārah.^[27]

Divorce (Ṭalāq) in Islam

It was apparent that Shaltūt's personal experiences during his brief tenure as qādī, when he was expelled from al-Azhar, gave him broad exposure in his deliberation of divorce in Islam. It is also imperative to note that in his discussion on the subject of divorce, Shaltūt indicates several options for the divorce between spouses, which he made clear in his subheading 'Divorce is a remedy' (al-ṬalāqʿIlāj). He articulates that while the divorce is permitted, it is also the most detestable in the eyes of God. From this perspective, Shaltūt argues that divorce is the last resort as a remedy to end their marital dispute.^[28] He views divorce as an opportunity for both parties to engage in self-reflection and to consider its effects on their families. He also points out that Islam allows them to return (rujūʿ) twice as husband and wife without undertaking the marriage process again, demonstrating the consequence of divorce and the opportunity to make amends for their previous mistakes. According to Shaltūt, as long as it does not exceed two divorces, they can reconcile again without having the wife marry another man to remarry her former husband.^[29] 

Such a belief whereby divorce is part of the remedy, Shaltūt argues, is in the interest of both spouses and their families as Islam narrows the scope of divorce. From this perspective, Shaltūt thinks that the pronouncement of ṭalāq three times in succession is equivalent to only one ṭalāq, while uttering divorce during menstruation or period of purity in which sexual intercourse has occurred is null and illegitimate.^[30] Subsequently, Shaltūt also expressed his agreement with the decision made by the Sharīʿah court of Egypt in 1929 to abolish the pronouncement of three ṭalāq and considered it as one ṭalāq.^[31] Many countries today, including Singapore, have followed suit in deciding to abolish the utterance of three ṭalāq in a single instance, indicating that Shaltūt's concerns remain relevant to the contemporary Muslim world.[32] 

Hence, Shaltūt's approach to this particular issue indicates that he drew from the works of classical scholars, like Ibn Taymiyyah and Ibn Qayyim; which is also the position of many contemporary scholars such as ʿAbduh, Abū Zahrah, Muḥammad al-Ghazālī, al-Sibāʿī and al-Qaraḍāwī.^[33] Many other ʿUlamāʾ at his time did not consider the circumstances of the divorce or the condition of the spouses to maintain their marriage in deliberating the provision of divorce on account of their inclination to a particular madhhab.^[34] By his account, therefore, Shaltūt disagrees with the opinions of many jurists who validated the utterance of three ṭalāq in one instance. He also disagrees with validating the occurrence of ṭalāq during her menstrual period, pregnancy or after having intercourse during purity. According to him, both opinions align with the position of the majority of classical Muslim jurists.^[35] Such practices, according to Shaltūt, were driven by the blind imitation (taqlīd) and sectarian spirit of their school of Fiqh. Thus, it does not fulfil the purpose of ṭalāq as a remedy.^[36]

Conclusion

The social environment and political contexts of his society and nation were instrumental in shaping Shaltūt's views and ijtihād on marriage, qiwāmah, and divorce. He emphasises the need to consider the context at the time of revelation when accurately interpreting specific Qur'ānic verses. Shaltūt considers the career development of women in his society at the time to advance his position on this issue. Shaltūt's opinion on this matter has helped to debunk some misguided Quranic interpretations and claims that women are weaker in mind and intellectually inferior as human beings.

Consequently, most of his fatāwā and ijtihād were profound and, not surprisingly, still relevant. They have been adopted by many fatāwā and Muslim religious authorities today. For instance, Shaltūt's view regarding the requirement of women's consent before any marriage can be registered uplifts the importance of women's voices in Egypt and has been implemented by other Muslim marriage registrars. The same can be said concerning his ijtihād on the pronouncement of ṭalāq three times in succession is equivalent to only one ṭalāq; a similar provision is also being ratified by many modern Muslim judiciary systems today.

Note: This article is an abridged version of the original section titled "Roles of Women in the Development of the Family" from the book Maḥmūd Shaltūt and Wasaṭiyyah in Islam.

To read more, the book Maḥmūd Shaltūt and Wasaṭiyyah in Islam is available at yusriyusoff.com/shop

References

[1] Shaykh Maḥmūd Shaltūt (1893-1963 CE) was a distinguished Muslim scholar during his lifetime, serving as Shaykh al-Azhar from 1958 to 1963. Shaltūt's works on Fiqh (Islamic law) and Tafsīr (Qur'ān exegesis) are highly regarded by scholars. So too is his collection of fatāwā on various religious issues, including matters pertaining to faith, worship, family law, and many others. That said, he addressed religious extremism, sectarianism, gender inequality, and other issues that are relevant and essential in today's world. Based on my experience working with the local community, similar challenges have arisen that require specific religious guidance.  Therefore, it is of paramount importance to examine renowned ʿUlamāʾ such as Shaltūt, as the challenges we face mirror those of his time.

[2] Maḥmūd Shaltūt, al-Islām, ʿAqīdah wa Sharīʿah, (Cairo: Dār al-Shurūq, 21^st edn., 2009), 210.

[3] Maḥmūd Shaltūt, Tafsīr al-Qur'ān al-Karīm: Al-Ajzāʾ al-ʿAsharah al-Ūlā, (Cairo: Dār al-Shurūq, 13^th edn., 2009), 140.

[4] Muḥammad ʿImārah, al-Islām wa al-Mar'ah fi Raʾy al-Imām ʿAbduh, (Cairo: Nahḍah Misr li al-Ṭibāʿah wa al-Nashr wa al-Tawziʾ, 2010), 72-73. See also, Al Nisāʾ, 4:21, “And how could you take it away after you have given yourselves to one another, and she has received a most solemn pledge from you?”

[5] Shaltūt, Tafsīr al-Qurʾān al-Karīm…, 141.

[6] For more details of these prohibitions of nikāḥ, see, Maḥmūd Shaltūt, al-Fatāwā: Dirāsah li-Mushkilāt al-Muslim al-Muʿāṣir fi Ḥayātihi al-Yawmiyyah al-ʿĀmmah, (Cairo: Dār al-Shurūq, 19^th edn., 2009), 232-237.

[7] Abī Dāwūd Sulaymān ibn al-Ashʿath al-Azdī al-Sijistānī, Sunan Abī Dāwūd, ed. Shuʿayb al-Arna'uṭ and Muḥammad Kāmil Qurrahballī, (Beirut: Dār-al-Kitāb al-ʿArabī, 2016), Hadith 2117: 455. See also, Shaltūt, al-Islām…, 147, Shaltūt, Tafsīr al-Qurʾān al-Karīm…, 138, 141. Muḥammad ʿImārah, Ḥaqā'iq wa Shubhāt, (Cairo: Dār al-Salām, 2010), 71. Yusuf al-Qaradawi, The Status of Women in Islam, translated from Arabic by Mohammed Gemeaʾah, (Cairo, Dar al-Tawziʾ wa al-Nashr al-Islāmiy, 1997), 64.

[8] “And when you divorce women, and they have come to the end of their waiting-term, hinder them not from marrying other men if they have agreed with each other in a fair manner. This is an admonition unto every one of you who believes in God and the Last Day; it is the most virtuous [way] for you, and the cleanest. And God knows, whereas you do not know.” Al-Baqarah, 2:232.

[9] Shaltūt, al-Islām…, 145-146, 213-214.

[10] Ibid., 214. Shaltūt gave the example of a female companion named Khansāʾ Bint Khidām who was forced to marry a man she disliked. So she complained to the Prophet and he declared the marriage as invalid. Muḥammad ibn Isma'īl al-Bukhārī, Ṣaḥīḥ al-Bukhārī, ed. Abū Zahwah and Aḥmad ʿInāyah, (Beirut: Dār-al-Kitāb al-ʿArabī, 2016), Hadith: 5138:1080.

[11] Ibid. See also, Muḥammad ibn Abī Bakar ibn Ayyūb al-Jawziyyah,ʿIʾlām al-Muwaqiʾīn ʿAn Rabb al-ʿĀlamīn (Medina: Mujammaʿ al-Mālik Fahd li Ṭabāʿah al-Musḥaf al-Sharīf, 2004), vol. 6, 436.

[12] Shaltūt, al-Islām…, 145-146.

[13] Muṣṭafā al-Sibāʿī, al-Mar'ah Bayna al-Fiqh wa al-Qānūn, (Cairo: Dār al-Salām, 4^th edn., 2010), 43-44.

[14] Ibid., 43, ʿImārah, al-Islām wa al-Mar'ah fī Raʾy al-Imām…, 79, al-Qaradawi, The Status of Women…, 54-55.

[15] Ibid., 44.

[16] “And the divorced women shall undergo, without remarrying, a waiting-period of three monthly courses: for it is not lawful for them to conceal what God may have created in their wombs, if they believe in God and the Last Day. And during this period their husbands are fully entitled to take them back, if they desire reconciliation; but, in accordance with justice, the rights of the wives [with regard to their husbands] are equal to the [husbands’] rights with regard to them, although men have precedence over them [in this respect]. And God is almighty, wise.” Al-Baqarah, 2:228.

[17] “Men shall take full care of women with the bounties which God has bestowed more abundantly on the former than on the latter, and with what they may spend out of their possessions. And the righteous women are the truly devout ones, who guard the intimacy which God has [ordained to be] guarded.” Al-Nisāʾ, 4:34.

[18] Muḥammad al-Ghazālī, Qaḍāyā al-Mar'ah Bayna al-Taqālīd al-Rākidah wa al-Wāfidah, (Cairo: Dār al-Shurūq, n.p.), 8, ʿImārah, al-Islām wa al-Mar'ah fī Raʾy al-Imām…, 24, al-Sibā'ī, al-Mar'ah Bayna al-Fiqh…, 21-22.

[19] Shaltūt, al-Islām…, 150.

[20] Muḥammad Rashīd Riḍā, Tafsīr al-Qur'ān al-Ḥakīm, (Cairo: Maṭbaʿah al-Manār, 1931), vol. 5, 68.

[21] Shaltūt, Tafsīr al-Qur'ān al-Karīm…

[22] Shaltūt, al-Islām…, 150-151. Al-Shūrā, 38 and Āli Imrān, 159. Muḥammad al-Ghazālī, Qaḍāyā al-Mar'ah…, 355, al-Buti, Women Between the Tyranny…, 141. Muhammad Said Ramadan, Women Between the Tyranny of the Western System and the Mercy of the Islamic Law, translated from Arabic by Nancy Roberts, (Damascus: Dar al-Fikr, 3^rd edn., 2009), 141.

[23] “And if both [parents] decide, by mutual consent and counsel, upon separation [of mother and child of nursing], they will incur no sin [thereby]; and if you decide to entrust your children to foster-mothers, you will incur no sin provided you ensure, in a fair manner, the safety of the child which you are handing over. But remain conscious of God, and know that God sees all that you do.” Al-Baqarah, 2:233.

[24] Shaltūt, al-Islām…, 150.

[25] Ibid., 152.

[26] Riḍā, Tafsīr al-Qur'ān…, vol. 2, 375, 380, vol. 5, 67-68.

[27] Muḥammad al-Ghazālī, al-Mar'ah fī al-Islām, 8, al-Buti, Women Between the Tyranny…, 136, al-Sibāʿī, al-Mar'ah Bayna al-Fiqh…, 21-22, Muḥammad Sayyid Tanṭāwī, al-Marʾah fi al-Islām, (n.p.: Maktabah Akhbār al-Yawm al-Islāmiyyah, n.d.), 78-79, ʿImārah, Ḥaqā'iq wa Shubhāt…, 158-160, 162-164.

[28] Ibn Qayyim al-Jawziyyah, Ighāthah al-Lihfān fī Ḥukm Ṭalāq al-Ghaḍbān, (Cairo: Matbaʿah al-Manār, 1909), 27, Shaltūt, al-Fatāwā…, 262, al-Qaradawi, The Status of Women…, 77.

[29] Shaltūt, al-Islām…, 163.

[30] Shaltūt, al-Fatāwā, 119, 261, 266, Shaltūt, al-Islām…, 164.

[31] Ibid., 261.

[32] Among countries that followed Egypt's decision are Tunisia, Turkey, Iran and Oman. See, Khalid al-Azri, “One or Three? Exploring the Scholarly Conflict over the Question of Triple Ṭalāq (Divorce) in Islamic Law with Particular Emphasis on Oman”, Arab Law Quarterly, vol. 25, no. 3 (2011): 291-293. The report states that 19 countries have abolished the pronouncement of ṭalāq three times in succession, which is equivalent to only one ṭalāq. See, The Indian Express, “Pakistan, Egypt among 19 countries that have abolished triple talaq”, Home,<https://indianexpress.com/article/india/pakistan-egypt-among-19-countries-that-haveabolished-triple-talaq-supreme-court-verdict-4808780/>( accessed 6 August 2022).

[33] Taqī al-Dīn Abū al-ʿAbbās Aḥmad ibn ʿAbd al-Ḥalīm ibn Taymiyyah, Majmūʿ al-Fatāwā, Muḥammad ibn Abī Bakar ibn Ayyūb ibn Qayyim al-Jawziyyah,ʿIʾlām al-Muwaqiʾīn ʿAn Rabb al-ʿĀlamīn, (n.p.: Maktabah Ibn Qayyim, 2002), vol. 6, 456-458, (Medina: Mujammaʿ al-Mālik Fahd li Ṭabāʿah al-Musḥaf al-Sharīf, 2004), vol. 33, 43, Ibn Qayyim al-Jawziyyah, Ighathah al-Lihfan…, 33-34, ʿAbduh, Aʿmāl Kāmilah…, vol. 1, 176, Riḍā, Tafsīr al-Qur'ān…, vol. 2, 83, 382, Muhammad al-Ghazali, Qadaya al-Mar’ah…, 186, al-Sibāʿī, al-Mar'ah Bayna al-Fiqh, 91-94, al-Qaradawi, The Status of Women…, 75, 181, Muḥammad Abū Zahrah, Fatāwā Shaykh Muḥammad Abū Zahrah, ed. Muḥammad ʿUthmān Shubayr, (Damascus: Dār al-Qalam, 2006), 557, 564. In supporting his fatwā, Abū Zahrah stated the decree by the Egyptian Sharīʿah court in 1929 that the utterance of three ṭalāq is considered as only one ṭalāq.

[34] Shaltūt might possibly want to refer to the traditionalist ʿUlamāʾ at that time who do not favour any attempts of ijtihād, but instead adopt the method of taqlīd and the sectarian spirit of their school of Fiqh. See, Albert Hourani, Arabic Thought in the Liberal Age: 1798-1939, (Cambridge: Cambridge University Press, 1983), 189-190, Daniel Crecelius, “The Ulama and The State in Modern Egypt”, (Ph.D. thesis, Princeton University, 1967), 293.

[35] This is the position for the majority of the four schools of thought. See, Wahbah al-Zuhaylī, Fiqh al-Islāmī wa Adillatuh, (Beirut: Dār al-Fikr, 3^rd edn., 1989), vol. 7, 406, 426-431.

[36] Shaltūt, al-Islām…, 165, Shaltūt, al-Fatāwā…, 255, 257, 261.