Washington Report on Middle East Affairs, October/November 1998, pages 69-71

A Country Report on Tunisia

Women’s Rights in Islam: The Position of Islam in Family Planning

By Dr. Wassila Ben Hamda

Following is the full text of a speech delivered by Tunisian Islamic scholar Dr. Wassila Ben Hamda at the Conference on Women: Islam and Family Planning in Niamey, Niger. Dr. Ben Hamda is the subject of a personal profile in the accompanying article, “Three Faces of Tunisian Women.”

The Rights of Women in Islam and the Position of Islam on Family Planning are very important themes in the present world context, and have been studied by many researchers of various backgrounds in Islam, both supporters and adversaries, for nearly two centuries now.

I. The Place and Rights of Women in Islam

The Qur’an calls Muslims “the community of the happy medium.” Avoiding extremism and fanaticism, Islam guides us toward the straight path, love of our neighbor and equity in all things. Thus have we made of you an Ummat justly balanced. That ye might be witnesses over the nations, and the Messenger a witness over yourselves. (The Cows, 143)

During the great pilgrimage of March 632, the “Pilgrimage of Adieu,” the Prophet pronounced a memorable sermon in which he recalled, one by one, the great spiritual and human values of Islam—respect of the individual, the inalienable rights of women, prohibition of racial hatred, total brotherhood in the relations among people, and specific recommendations for respecting women. Thus women were recognized and respected as full-fledged individuals, with no discrimination or difference being made.

O mankind! We created you from a single (pair) of a male and a female, and made you into nations and tribes, that ye may know each other (not that ye may despise each other). Verily the most honored of you in the sight of Allah is the most righteous of you. And Allah has full knowledge and is well acquainted (with all things). (The Apartments, 13)

The Prophet said: “Women are the equals of men.” When invited out, the Prophet frequently went accompanied by his wife, and he always refused invitations addressed exclusively to himself. A number of passages from Tabari attest to this.

With respect to prayer, women always went with men to the mosque, and might pray behind or in front of the Imam, beside or behind the men; their prayers are just. This is proven in a work entitled The Theology of the Four Doctrines. In our day, however, and despite advances in customs, some view these principles unfavorably and oblige women to pray in a separate part of the mosque, removed from the sight of men.

Women were equal in social life, and in addition to assuming their traditional roles of procreation and maternity had taken a place in every decision and in all fields of social life, helping to establish a better life. Women were writers, poets, warriors, scholars, advisers, and they even had the right to vote.

O Prophet! When believing women come to thee to take the oath of fealty to thee, that they will not associate in worship any other thing whatever with Allah, that they will not steal, that they will not commit adultery (or fornication), that they will not kill their children, that they will not utter slander, intentionally forging falsehood, and that they will not disobey thee in any just matter—then do thou receive their fealty, and pray to Allah for the forgiveness (of their sins) : for Allah is oft-forgiving, most merciful. (Mise l’ preuve, 12)

The Qur’an also speaks of women leaders in political life. I found (there) a woman ruling over them and provided with every requisite; and she has a magnificent throne. (The Ants, 23)

Aisha, the Prophet’s wife, mentioned by el-Boukhari among others, is a fine example of the learned woman, active at all levels in society. A good student of the Prophet, she was consulted by many of his most outstanding companions. She was the most erudite woman of her time. She participated in a battle against Ali Ibn Abi Taleb, the fourth caliph. A perfect Muslim, Aisha had the courage to oppose the powers of the time as politician, scholar and warrior. She was responsible for reporting more than a thousand hadith. She and a number of other women are mentioned in the Qur’an, most of them not by name but through their lives, qualities or problems. They were the object of divine grace.

Allah has indeed heard (and accepted) the statement of the woman who pleads with thee concerning her husband and carries her complaint (in prayer) to Allah: and Allah (always) hears the arguments between both of you: for Allah hears and sees (all things). (The Discussion, 1)

Because of her intelligence and wisdom, Om Salama, another of the Prophet’s wives, advised him on questions related to war and also in times of peace. The Qur’an refers several times to this woman, whom the Prophet married despite her advanced age. Ettirmidhi, in his Anthology, and El Hakem Naisabour in Al Mostadrak, report that Om Salama said to the Prophet, “I have not heard God speak of women.” The reply, from the Qur’an, was as follows: And their Lord hath accepted of them, and answered them : Never will I suffer to be lost the work of any of you, be he male or female: ye are members, one of another. (The Family of Imran, 195)

A second Qur’anic reference to Om Salama refers to a wish she expressed, in the presence of the Prophet, that God should speak of women on equal terms with men: For Muslim men and women, for believing men and women, for devout men and women, for true men and women, for men and women who are patient and constant, for men and women who humble themselves, for men and women who give in charity, for men and women who fast, for men and women who guard their chastity, and for men and women who engage much in Allah’s remembrance. For them has Allah prepared forgiveness and great reward. (Les Coalises, 35)

Al Mustadrak also mentions that Om Salama asked the Prophet why women were victimized by extermination. “Why do men fight, when women are deprived of that right? Why do we receive only half the inheritance?” The answers to these questions are found in the sura “The Women, 32” which says: And in no wise covet those in which Allah hath bestowed his gifts more freely on some of you than on others: to men is allotted what they earn, and to women what they earn: but ask Allah of his bounty. For Allah hath full Knowledge of all things.

The Qur’an praises the intelligence, maturity and wisdom of other women as well—the mother of the prophet Moses, the holy Meriem, mother of the prophet Jesus, the wife of the Pharaoh, and the queen of Sheba, among others.

It is impossible to speak of the place and rights of women in Islam without referring to the Qur’an. As a good Muslim, I cannot neglect the importance of the two major sources of Islam, the Qur’an and the Sunna, nor can I neglect the place occupied by ijtihad in Islamic thought. Ijtihad is the intellectual effort furnished by the scholars (ulemas, fukahas, and others) to understand the deeper meaning of the texts.

Islam emphasizes a balanced family life, considering the union of the spouses as an “inviolable alliance,” to complete their shared life and make it happy.

To summarize what I have just said, Islam affirms the following:

1. The equality of women with men.
   
   
2. The right of women to freedom of belief and expression.
   
   
3. The right of women to share political responsibility.
   
   
4. The economic independence of women.
   
   
5. The right of women to education, training and a working life.
   
   
6. The right of women to a balanced, stable family life.
   
   
7. The preservation of the woman’s physical and mental health.

II. Islam and Family Planning

In Islam the family is considered the essential unit of society, encouraging a balanced, healthy, happy family life. The religion established marriage as the only legitimate institution for creating a family and for establishing a life in common and all the relations between husband and wife; it has also set up the conditions for forming a family and protecting it from collapse and instability:

1. Both spouses must be suited for marriage, of sound body and mind.
   
   
2. The husband must have the material means for meeting his family’s needs, including housing, food, clothing, and all that will assure his children of education, training and well-being.

When these conditions are met, marriage becomes an inviolate bond between husband and wife, assuring a family life that will be filled with tenderness, affection and mercy.

And among his signs is this, that he created for you mates from among yourselves, that ye may dwell in tranquillity with them, and he has put love and mercy between your (Hearts): verily in that are signs for those who reflect. (The Romans, 21)

Islam requires that each spouse treat the other with respect. The Prophet, preparing himself to meet Allah as he was about to die, said: “treat women with the greatest possible favor.” (Al-Boukhari, Anthology, Anbiya 1)

If the required conditions cannot be guaranteed, the Qur’an recommends delaying marriage.

Let those who find not the wherewithal for marriage keep themselves chaste, until Allah gives them means out of His grace. (The Light, 33)

If some of the conditions are met, the marriage may take place, but since this generally leads quickly to the birth of a child, most of the fukahas consider Islam as authorizing the use of some means to prevent conception, and recommend a healthy family, small if need be.

There is no passage in the Qur’an that categorically authorizes or prohibits the use of contraceptive means. In practice, however, there has since the Prophet’s time been what is called el azl, coitus interruptus, used by a number of Muslims for family or personal reasons. One of the Prophet’s companions, Jaber, reported that el azl was practiced, and that the Prophet was aware of the fact and did not prohibit it.

Other companions of the Prophet discussed the practice, and Omar and Ali said that it was permissible. But despite it being permitted during the Prophet’s time, and despite the consensus of his companions, the fukahas, who generally look for divergences of opinion, are divided on the subject. In chronological order: the Hanafites authorize el azl. The Malikites authorize it provided the wife is informed. The Shafiites adopted two different views. One was to permit el azl, especially if the wife achieved orgasm, since in that case she received what she expected of her husband. The other was that el azl was not allowed when practiced with the intention of preventing procreation. The Hanbalites allow el azl provided the wife gives her authorization. The Shiites, Ibadites and Sahirites all have an opinion on the matter, the Zahirites prohibiting el azl, and the Zaidites (Shiites) and the Ibadites authorizing it with the wife’s consent. The Shiites consider the practice to be blameworthy if the wife has not given her consent.

This subject of el azl brings us to the problem of abortion, which has been widely discussed among the fukahas of the different schools.

Positions on abortion often refer to whether it is practiced before or after insufflation of the soul. The latter is prohibited by most fukahas, although some authorize it when the pregnancy presents a clear danger to the mother. Abortion before insufflation of the soul is authorized by some, prohibited by others. Most, however, authorize it from the position that a fetus is not alive before it has received a soul, a situation it obtains at the end of the fourth month of pregnancy. A third group of fukahas prohibit abortion without exception, but these are in the minority.

In the contemporary world, given social problems and deteriorating living conditions due to the lack of housing, schools and hospitals, a number of ulemas have examined the question and have pronounced fatwas authorizing the use of contraceptive means and abortion under certain conditions: in the case of abortion, that it be practiced before the pregnancy has advanced beyond the fourth month; that the family be poor; and that the pregnancy constitute a threat to the mother’s health.

We in Tunisia have pioneering experience in the field of family planning of which I have just given an overview. Since the advent of Islam, two major cultural centers, Kairouan (the Okba mosque) and Tunis (Zitouna University) have influenced our country and its neighbors, spreading Islamic culture in all its genuineness and progressive attitude.

A great reformist current appeared in the 19th century with Kheireddine, Salem Bouhajeb, and Beyram V. In the 20th century, Tunisian women had two great emancipating defenders in the reformist Tahar Haddad and my late professor, the learned fekih Sheikh Mohamed El Fadhel Ben Achour. Haddad’s book Our Women in the Sharia and Society is an important reference, and the fatwa of Sheikh Ben Achour is the fruit of the ijtihad of that great reformist innovator, who was the Mufti of the republic and rector of the Zitouna University. Just after achieving independence, Tunisia acquired a Code of Personal Status, and with President Ben Ali this code has been revised and updated. It does honor to the Tunisian, Arab, African and Muslim woman.

The Code of Personal Status had a positive effect on the couple’s sexual life, abolishing polygamy, and punishing marriage outside the legal forms, a practice which was widespread in Tunisia before its enactment. It also condemns concubinage. The Code requires that a women be allowed free choice of her husband, that both spouses consent to the marriage, that both spouses have equal rights and duties in divorce, and that divorce may be obtained on the grounds of failure of the other spouse to provide sexual satisfaction. The amendments of 1993 further improved legislation on behalf of couples.

Tunisia is a country which is tolerant, open, and at the same time highly faithful to its Arab and Muslim identity. It has approached women’s promotion and the issue of family planning on the basis of the opinions of its great fukahas, who have found in ijtihad an inexhaustible source of renewal, modernity and development.