This Conference resonates with visions of the subtle and sublime; it permeates the world with echoes of The Divine. Centuries of discourse coalesce upon a moment to ponder a single emotion in time. The records of existence are re-opened and examined as the ideas migrate and rebound. It is not what we know, but what we could know that guides us; aren't the possibilities limitless when exploring the Divine? We search for God in the permutations of the rejuvenating text, in the enticements of beauty, in the revulsions of ugliness, in the restitutions of conscience, and in the wonders of creation.
I ask my God for a guideline, and I always find it in beauty, for my guide is beautiful and sublime. How can The Beautiful demand of us anything but the beautiful? If there is a beauty to life it is that we derive from the magnanimity of God the urge for the beautiful and the refined. "Blessed be God the best of creators," (23:14), Who placed in us the desire to transcend in beauty the ravages of time.
She tells me with a face solemn with emotion that her husband struck her, and that although she suffered no pain, she cannot accept aggression. The imam in the mosque advised her that her husband is her guardian, and God has decreed that a beating is not in this case a transgression. If she is seeking divorce this is not a sufficient cause because an opportunity to perfect humility is hardly a loss. If you have disobeyed, the imam said, then you are defiant. A nashiz in the book of God is an arrogant woman who does not see her husband as her boss.
But she tells me that it is not her desire for a divorce that guides her as much as it is a sense of betrayal. Feeling that her dignity and the dignity of her husband are not treated as of the same nature or worth is treachery of the worst kind.
I ask her, trying to gauge her exposure, "Did the imam explain to you why?" She says, "I looked it up myself—an affront to my equanimity and to my belief in the dignity of self-composure. If my husband has to resort to the ugliness of violence then he is hardly the one to be entrusted with such a right."
I said, "If you believe that God is beauty, I can share with you the murmurings of this Conference. This mind can flow with reflections and thoughts, but do not expect from me any conclusions. It is not what I know, but what I could know which drives my sense of beauty."
It is reported that ‘Ali (d. 40/661) had said that before Islam, if a man struck his wife, the shame of the act would plague him and his descendants for many years to come. After all, the man would be known as a wife beater. How could such a shameful act be sanctioned after Islam when Islam is the liberator?
"But the verses," she says, "the imam based his opinion on verses and not reason."
I am torn when speaking to my fellow Muslim for I see much beauty in reason. We do not worship an irrational god; all creation testifies to the beauty of His reason.
"Then let us examine the verse," I said, "for the Qur’an is the guide to our reason."
The Qur’an says: "As for those women who you fear their nushuz, admonish them, abandon their beds and beat them. If they obey you, do not seek to persecute them for God is high and greater than you all."(4:34)
"And, if you fear a breach between them, then appoint two arbitrators, one from his family and the other from her family. If they wish for peace, God may facilitate between them for God knows everything." (4:35)
I proclaim, much turns here on who is being addressed, the context and what does nushuz mean. Let me first tell you that it is often said that these verses were revealed when Umm Salama, (d. 62/681) the Prophet's wife, complained about the preferential treatment of men. Shortly thereafter, a man from the Ansar struck his wife. The Prophet decreed that as he struck her, he will be struck. But then the verses were revealed and the Prophet ruled that there is no retaliation between husband and wife.
Now, my sister, let us set out the foundations of our reasoning. Do you know of a woman who finds beauty or dignity in a beating? Considering our knowledge of men, do you see a reason for God to entrust husbands with the administration of equitable beatings? God informs us that the purpose of marriage is to find friendship, tranquility and mercy. (30:21)(7:189) Is this consistent with an empowerment to administer a beating? In the Qur’an, men have not been empowered to beat even a servant or child, so what is the secret of their empowerment over their wives? Furthermore, a trustworthy person is one who follows the Sunna with his children and his wife. Did you ever hear of a single occasion where the Prophet struck one of his wives? Even more, the Prophet is reported to have said that the worst of you are those who beat their wives. Elsewhere, it is reported that he said that those who beat their wives are not among the best of you. I ask you my sister, and ask the learned imam, if a man neither follows the Sunna, nor is of the best character, why should he be entrusted with the just administration of violence? As to the reason for the revelation of the verse, I must admit it leaves my heart in painful doubt. One, whether this is the occasion for revelation is disagreed upon. Two, all the report holds is that there is not a right to formal retaliation between husband and wife. Even then, the jurists have held that if there is a physical injury or death, then there should be retaliation between husband and wife. By God, aren't there injuries to dignity that make death preferable to life?
All that I have said so far is that I need certainty. Before I ascribe to God something that torments the heart, before I admit to men the power of execution, I must weigh the possibilities in my head. If there is the glimmer of beauty to be pursued then my mind will search the subtleties of what has been said. If I have a shadow of doubt I will run to the refuge of the beautiful.
Having properly prefaced what may be said now, notice that God commands that in the case of a breach, two arbitrators will be chosen. The jurists disagreed on whether the arbitration and its judgment is optional or a mandatory delegation to the state. ‘Ali, the companion, ruled that the arbitrators act as judges and if a husband wishes a marriage to continue, he must comply with their adjudication. It is reported that ‘Ali told a husband that he is not free to ignore the results of an arbitration. But I fear, my sister, that there is an inconsistency in an arbitration that follows a beating. It seems to me, and God knows best, that to say, "if you fear a breach," after the authorization of beating, is a tension in the text. Wouldn't you say that if there is a beating after being abandoned in bed, a breach has already occurred? If the husband has already abandoned his wife and beat her then what is the point of the arbitration? Isn't this like calling for a trial but assigning the penalty first? Why is the husband entrusted to be the accuser, judge and enforcer, and after we so entrusted him, we then say, go to arbitration for reconciliation is best! What if the husband believes his wife is a nashiz, and then beats her, but the arbitrators decide that he is a cat-torturing scoundrel who is hopelessly disturbed?
By God, my sister, this is a test. For the wife beaters will be content but all others will want to scrutinize the text. First, I must admit that if someone struck my sister or daughter and I was asked to judge the offender and the offense, I would doubt the equanimity of his and my character—I would doubt him for beating his wife and doubt myself for wanting so badly to slap his head.
She smiled and so I continued, "Now we ask the question: What is nushuz and who is the nashiz and who is being addressed?"
The jurists, may God bless them, say that a nushuz is arrogance and defiance, and a nashiz is an arrogant and disobedient person. Some jurists, such as Ibn Rushd, the grandfather (d. 520/1126), said that a nashiz is a deviant woman who refuses to pray, fast or cleanse herself from impurities. But there is a problem here. The word nushuz is used to describe men as well. For our Lord says:
"If a wife fears from her husband nushuz or rejection (i‘rad) there is no blame on them if they seek an amicable settlement between them. For amicable settlements are best although the souls of people incline towards greed. If you do good and practice self-restraint God knows all that you do." (4:128)
Some say that this verse was revealed when Sawda (d.54/674), the Prophet's wife, feared that the Prophet would divorce her so she relinquished some of her rights so that he would keep her. But this report is an abomination, for how do the reporters know what fears plagued Sawda's heart? And, didn't God give the Prophet's wives a choice and they chose him? No, our Prophet would not single out a wife with the dishonor of a discriminatory separation. Other reporters said that this verse was revealed when a husband and wife constantly fought over the husband's second marriage. They divorced and re-married several times, but eventually they reached a reconciliation. In any case, what the jurists agreed upon is that this verse means that a form of reconciliation between husband and wife is better than a separation.
The question I ask you, my sister, is what does nushuz mean in the second verse (4:128)? Does it mean the disobedience of a husband to his wife? But does this mean that a husband owes a duty of obedience to his wife? Is a husband a nashiz if he disobeys his wife? And, why does God distinguish between rejection (i‘rad) and nushuz when it comes to a husband? If nushuz means arrogance, defiance and disobedience in the case of the wife, does it mean the same thing in the case of a husband?
The jurists, may God bless and forgive them, troubled by this tension, said that nushuz, in the case of a wife, means disobedience, and in the case of a husband, means a grave and known sin (fahisha mubina).
The sister curled her lips and adjusted the hair that slipped from the scarf adorning her head. Her eyes glanced at the volumes of books on the crowded shelves. Yes, it is the aches of the pathways of knowledge which distinguish the striver from the dead. After a pause she carefully said, "Does this mean that nushuz in the case of wives means a grave and known sin as well? A wife commits nushuz if she commits a grave and known sin?"
With a glimmer I said, "It is reported that the Prophet in his final pilgrimage proclaimed, 'O' people, I command you to treat women with kindness for they are your support. You have no other rights over them unless they commit a grave and known sin (fahisha mubina). If they do, abandon them in beds and beat them lightly, but if they comply do not transgress against them."
It seems to me that the Prophet uses the expression fahisha mubina as the equivalent of nushuz, and that nushuz means a fahisha mubina (a grave and known sin). If that is so, then nushuz cannot mean disobedience or a case of simple disagreement. If there is a serious disagreement, then the state may compel an arbitration. But this is entirely different from a fahisha mubina. A fahisha mubina usually means a grave sexual sin. For instance, a fahisha mubina is sexual activity short of intercourse, or intercourse that cannot be proven by four witnesses or, if there are four witnesses, intercourse in which the witnesses did not see the actual insertion of the organ into the organ. A fahisha mubina is not disobedience, arrogance or insolence. It is sexual lewdness.
She then commented, "But all you have argued for thus far is that nushuz means a fahisha mubina. This could mean that in such a case a husband would have recourse to a beating. Perhaps I did not deserve to be struck by my husband, but that is only because I did not commit a grave and known sin. But why would men be entrusted with alleging, investigating and penalizing the commission of a grave and known sin? My husband is a suspicious person who thinks a smile or headache is incontrovertible evidence of treason."
I exclaimed with a smile about to explode upon my face, "As to your husband, in God we seek refuge from ignorance and arrogance. As to you, I believe your words are well-reasoned. You should know that Ibn Rushd, the grandfather, was once asked whether a man who caught his wife performing lewd acts with a foreign man in bed, could beat his wife and imprison her. Ibn Rushd responded that the husband may forgive his wife or divorce her, but anything beyond that would be a transgression. For it is God Who said, "Do not hold them despite their will to harm them," (2:231) and it is God Who also said, "Either stay with them in kindness or divorce them with kindness." (65:2)
The Qur’an talks of a marriage full of tranquility and kindness or a divorce restrained by justice and kindness. Where in this do you see a place for abandonment and beatings?
Recall, my sister, that in the same chapter of al-Nisa (4:15) God decrees that women guilty of lewdness (fahisha), upon the testimony of four witnesses, are to be confined to their houses until repentance. For God in the Qur’an says: "As to your women who are guilty of lewdness (fahisha), take the evidence of four witnesses from among you against them. If the witnesses testify, confine them (the women) to houses until death claims them or until God ordains for them some other way. If men among you are guilty of lewdness, punish them. But if they (the men or women) repent and amend (their behavior), leave them alone, for God is forgiving and merciful." (4:15-16)
At this point, she quickly interceded, "But it is said that this ruling was abrogated by the punishment for zina (fornication). Whipping has been decreed instead of imprisonment."
I responded, "True, that is what is said by those who accept abrogation in the Qur’an, but this is not material to my point. Reading the context as whole, and not verse by verse, new possibilities offer themselves. What if verse 4:34 is a specification or limitation upon verse 4:15? Therefore, what if the one who commits a fahisha is a wife and four witnesses are not available, then the remedy is spelled out in 4:34? Alternatively, what if 4:15 is stating the rule for unmarried women and 4:34 states the rule for married women? If you accept abrogation then 4:15 and 4:34 would both be abrogated. But if you do not accept abrogation, then 4:15 spells out the punishment for fahisha, not zina, for unmarried women, and 4:34 spells out the punishment for fahisha, not zina, of married women. In both cases, you need witnesses and evidence, in both cases you need a finding and judgment.
Consider the possibility, as in the case of banditry (5:33), 4:34 is stating a rule of proportionality. Admonishment is the normal rule, but if a wife resorts to abandonment, she could be abandoned and if she strikes her husband, she could be struck? But if the parties do not wish to engage in a boxing-match then the solution is an arbitration blessed by God. Alternatively, 4:34 is not addressed to husbands at all but to the state. Meaning, if there is an allegation of a grave and known sin and it is proven by the resolution of a court, a separation or corporal punishment may be ordered. In case of a disagreement not involving a grave and known sin, an arbitration may be ordered. In other words, the remedy is not left to the discretion of husbands but is given to a court. Nothing in 4:34 necessitates that the remedy be in private hands, for history and creation have shown that when it comes to punishment husbands are hardly the ones to be trusted.
She smiled with the doubt of a skeptic and said, "But how about the nushuz of husbands, what becomes of that? What becomes of verse 4:128?"
I rejoiced at the beauty of heuristic arguments, "What about 4:128 my sister? 4:128 and 4:34 are not remedial compliments. The hadith of the Prophet as to 4:34 equated between fahisha mubina and nushuz. Does the hadith necessarily extend to 4:128? See, many jurists thought that the nushuz of 4:34 (for women) means arrogance or aloofness and the nushuz of 4:128 (for men) means a lewd sin. I believe that because of the Prophet's hadith, if anything, it is exactly the opposite. But at any case, even if nushuz always means a lewd sin, all 4:128 says is that there is no harm in reaching a compromise if it is to avoid a divorce. There is nothing in 4:128 that says husbands may not be punished for lewd acts. In fact, the presumption in pre-Islamic Arabia was that only men are subject to criminal penalties, while women are to be left to the disposition of their families. Criminal punishment for men was assumed. Criminal punishment for women is specified in the Qur’an but specification does not necessarily mean the exclusivity of a rule, but it could mean the extension of the rule to a category otherwise presumed not to be covered. Furthermore, please note that 4:16 does require punishment for men as well. But it does not specify the punishment. Instead, it just says, ‘harm them.’ It could be that whether the man is married or unmarried, if there is a fahisha the punishment is the same.”
She frowned slightly and said, "But if I may ask, if 4:15 refers to unmarried women what does God mean when God says, 'or until God ordains for them some other way'?"
I responded, "I am not sure, nor is anyone else. Those who accept abrogation said that it means the abrogation of the rule by the decreeing of the punishment of zina. I tend to think it means marriage. So if the woman is unmarried and she has committed lewdness, she is under a form of house arrest until marriage or repentance. If she is married then 4:34 applies and it is as we have previously said."
She placed her forehead in her palms, squinted her eyes and then exclaimed, "So, what you are saying is that 4:34 is not talking about disobedience, it is talking about lewd acts. In the case of a lewd act, known and proven in court, a court may order a separation or corporal punishment for a wife. In the case of a husband, corporal punishment may be ordered but we are not sure about an order of separation. But, on a separate matter, 4:35 is talking about normal but serious marital disputes. In the case of a rift between husband and wife—a rift unrelated to allegations of lewdness or the like—a court may order an arbitration?" I found myself suddenly pensive and subdued in thought. "My sister," I said, "this seems to me a better and more beautiful interpretation." (4:59) Yet, I promised no conclusions, for the flow of thought can only know tentative resolutions. But if I managed to create a shadow of doubt about the permissibility of wife beatings then the pious will stay away from situations of doubt. Only the most arrogant will dare assume the right to inflict a beating, and I hope that no woman will accept a husband who arrogantly takes liberties with her beauty and pride. To beat your family is an ill-manner and a foul and revolting action, and the Prophet said that he was sent to perfect our character. I am repelled by ugliness, and I take refuge in the gift of the mind capable of interpretation. If I find in my heart revulsion and consternation, I take it to my Lord, and in the bounty of the Conference I extract the beauty of my Lord's creation. For God does not wish an injustice upon people (40:31). It is not God who commits injustice, but it is human beings who transgress against themselves (3:117). It is my Lord who said: "This is the [most] beautiful way (religion), so do not abuse it so as to wrong yourselves." (9:36) May God forbid that I be among the unjust and ignorant (33:72) who ascribes to God anything but the pure and beautiful. Surely, my sister, if we fail to interpret, we only transgress against ourselves."