Human Rights In Islam

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  • Human Rights In Islam

  • (C) The Custodianship of the Family.


            There are two reasons why the right to the custodianship of the family is granted to men by the Faith of Islam. The first reason is that men are charged with the financial support of their families and it is only fair that the person charged with the financial support and maintenance of any group of people should have the right of being that group's custodian who supervises their affairs.


            The constitutions of the democracies of the modern world are likewise based upon this principle. The citizens of the state who pay taxes, which are spent on the public utilities of the state, have the right to have a say in their affairs and supervise the executive power of the land, in addition to participating in the legislation of the state. Referendums, general elections and representation in parliament are also based upon the same principle.


            A referendum grants the citizens of a state direct supervision over the affairs of their country, whereas their indirect supervision is realised in the system of parliamentary representation by which they elect the members of parliament in a free election. Constitutional legislators sum up this principle in the following statement: "He who pays has the right of supervision". The second reason for granting a man authority and custodianship over his family is due to the indisputable fact that women are more emotional than men and that their disposition affects their judgement. God Almighty created women in this manner to enable them to pursue the principal role in their life namely that of motherhood and all that such a role entails, which includes nursing their babies and caring for them day and night. Such a vital role requires a sensitive compassionate nature more than its need for contemplation and meditation. On the other hand, men do not usually follow their emotions as is the case with women, and in most cases men are influenced by their reason and their perception. Accordingly a man's nature and disposition qualify him to be the head of the family and to supervise its affairs. These two reasons are stated in the following Quranic verse : "Men are the protectors and maintainers of women, because God has given the one more (strength) than the other, and because they support them from their means'' [1]


    This custodianship which Islam grants man over his family is merciful, guiding and loving. It also includes principles that preserve a woman's dignity and protect her rights and welfare in every respect. The aim of this custodianship is one of protection and affection and not of absolute power or domination. Islam thus ensures the welfare of the family and of women themselves by taking into account all the circumstances and situations that exist in a woman's life.


            If a Muslim girl or woman is unmarried, her father or her guardian is her custodian and he is therefore charged with supporting and providing for her financially so that she would not be forced to earn her living in a manner that might lead to her disgrace or the disgrace of her family. The custodianship in this case preserves the woman's dignity and protects her from any possible embarrassment. 

            A Muslim girl who is eligible for marriage, being of sound mind and body, has the right to choose the man she is going to marry, after the consent of her guardian - be he her father or otherwise. Her guardian however cannot force her to marry any person against her will.


            It has been related that a girl went to `A'isha, wife of the Prophet, blessings and peace be upon him, and complained to her that her father had married her to his brother's son in order to elevate her status. `A'isha told her to wait until the Prophet, blessings and peace be upon him, returned home so that he could advise her what to do. When he returned and heard the girl's complaint he said : "A girl has more right to her choice than her guardian". The girl said: "O Prophet of God, I will obey my father, but I came to you so that women will understand that men do not have the right to force women in this matter".


            She meant that men did not have the right to force women into marriage against their will. If a girl or woman chooses a husband and her guardian refuses him, without having a legitimate reason for his refusal, she can take the matter to court and the Judge can marry her to the man of her choice. The following Quranic verse refers to not preventing divorced women from remarrying their former husbands if they desire to do so "When ye divorce women, and they fulfil the term of their (`Iddat), do not prevent them from marrying their (former)husbands, if they mutually agree on equitable terms".[2]


            Islam is greatly concerned with the issue of compatability between husband and wife. The wisdom of this ruling is that marriage is not only a relationship between two people but is a relationship between two families. An incompatible marriage usually brings more embarrassment upon the wife's family than the husband's family. Accordingly the Faith of Islam grants the girl's or the woman's guardian the right to prevent her from marrying a person who would bring disgrace upon her and upon her family. This is the guardian's right, yet he cannot force her to marry against her will but is permitted to advise her and convince her. The Faith of Islam also grants the judge of the State the right to intervene in matters of marriage in which guardians are unfair or exceed the limits of their authority.


    Abu Hanifa, one of the four founders of the schools of Muslim Law, declared that a Muslim woman has the right to marry herself whenever she wishes provided that her husband is compatible by religious standards and that her guardian has no right to prevent her marriage except on the grounds of incompatibility.


            The current laws in Egypt are based upon Abu Hanifa's ruling. Abu Hanifa's School of Muslim law and the other schools of Muslim law agree that the custodianship and supervision granted to men by Islam in this stage of a girl's or a woman's life, in common with the other stages of her life are for her welfare and protection.

            After a woman is married, this custodianship and supervision is transferred from her father or guardian to her husband. This does not in any way belittle the woman nor does it affect any of her civil rights of purchasing, selling, entering into contracts or disposing of her wealth and property independently without requiring her husband's consent. In fact her husband does not have any right to intervene in her affairs without her consent or her granting him power of attorny, which she can cancel any time if she so wishes.

            The man's custodianship and supervision over his wife as head of the family is manifested in his right to supervise the policy of the household with the cooperation of the wife, who must obey him within the recognized ordained limits. These rights granted to men impose upon them certain obligations such as financially supporting their wives and families in addition to protecting their rights. Husbands are also commanded to treat their wives fairly, kindly and generously. A husband must be tolerant and lenient when dealing with the problems that exist in every marriage. He is also religiously charged with correcting his wife's errors in a gentle and understanding manner. The Prophet, blessings and peace be upon him, stated that the best people are those who are kind to their families.


    The passage from the following Quranic verse summarizes the aforementioned relationship between husband and wife "And women shall have rights similar to the rights against them, according to what is equitable ; but men have a degree of advantage over them".[3] In Islam women's rights are equal to their obligations and men's obligations are equal to their rights, and even the degree that God grants man is not without obligations since it charges him with the support, maintainance and protection of his wife and family.[4]


    [1] Surah IV, verse 34.

    [2] Surah II, verse 232.

    [3] Surah II, 229.

    [4] See article on Custodianship by Sheikh M. Abu Zahra.

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