Married life starts, according to Islamic law, with a contract made on the basis of mutual consent and rendered invalid by coercion. It remains in force as long as the two parties are willing to continue with it. It is terminated if such mutual consent is removed by divorce or khula’, which is a termination of marriage at the wife’s request in return for financial compensation given to the husband. The basis for the continuity of the marriage is consultation between husband and wife regarding all matters including the breast-feeding and weaning of children: “If, by mutual consent and after due consultation, the parents choose to wean the child, they shall incur no sin thereby.” (2: 233)
In our view, what the final document of the Cairo population conference included in its chapter on “principles” concerning the consolidation of the woman’s status and her equality with man is no more than an echo of some of the principles laid down by Islam right from the first moment of Qur’anic revelations given to the Prophet (peace be upon him).
When the enforcement of the final document of the conference is governed by religious, moral and cultural values and by the sovereign rights of each state, then no blame may be attached to any Muslim country that endorses this document. The reservations expressed by some states concerning some provisions do no more than reiterate the principle stated in the preamble and elsewhere in the document that its implementation remains within the values prevailing in every state and within its sovereign rights.
Chapter 4 of the final document is devoted to equality of the two sexes, justice and consolidation of women’s social status. It includes a number of practical measures the document recommends to be taken by every state in order to implement the principles outlined in the document. The recommended measures include the establishment of necessary mechanisms to ensure equal participation by, and fair representation of, women in political and public forums, at all levels.
They also include the empowerment of women to make full use of their potential through education, skill improvement and the creation of job opportunities, together with making increased efforts to eradicate poverty, ignorance and disease among women.
The document also calls for the elimination of discrimination against women in certain societies, as well as violence against women and job discrimination on the basis of sex.
All such measures that communities and states may take to achieve full equality between men and women may be regarded as essential for the implementation of Islamic principles in this regard. There is no doubt that Arab and Islamic societies need to give more careful consideration than many other communities to this issue, which is of vital importance to social and economic development. The Cairo conference has reminded us, through its final document, of our duty to take good care of women, as we are required to do so by our faith.
Article 4.6 of the document urges governments to assert the woman’s legal competence. This principle was laid down by Islam at the time when its message was revealed from on high.
The Qur’an states: “Men shall have a benefit of what they earn and women shall have a benefit of what they earn.” (4: 32) All schools of Islamic law treat men and women as perfectly equal with regard to their legal status.
Many critics of the document have expressed their profound worry about article 4.14 which speaks of women’s rights to inheritance. They feared that it may run contrary to the way the Islamic system of inheritance is outlined in the Qur’an. Such worry is needless, because the implementation of the document, with all the detailed principles and measures it outlines, remains subject to the values prevalent in every state. Moreover, what this and other statements in the document advocate is as follows:
Ensuring women’s rights to inheritance; and ensuring that women have equal or balanced rights of inheritance.
The first requirement is established in a definitive text in the Qur’an: “Men shall have a share in what parents and kinsfolk leave behind, and women shall have a share in what parents and kinsfolk leave behind; whether it be little or much. It is an apportioned share.” (4: 7) The Qur’an also states very clearly that the complete and perfect knowledge of the wisdom behind the Islamic system of inheritance belongs to God alone: “With regard to your parents and your children, you do not know which of them is of more benefit to you. This is, therefore, an ordinance from God. God is all-knowing, wise.” (4: 11)
The Qur’an warns very strongly against fiddling with the law of inheritance. The verses that outline this law are followed by clear comments: “These are the bounds set by God. Whoever obeys God and His messenger, him will He admit into gardens through which running waters flow, there to dwell forever. That is the supreme triumph. But whoever disobeys God and His messenger, and transgresses His bounds, him will He commit to the fire, there to abide forever; and shameful torment awaits him.” (4: 13-14.)
Some people may think that Islam has not given equal or balanced rights of inheritance to men and women, but such thoughts are erroneous. The fact that a woman’s share in certain situations is less than a man’s share is related to their respective financial responsibilities. It is a fair distribution of gain and responsibility on the basis of the Islamic legal rule which states: “Liability is commensurate to gain.”
Moreover, a woman’s share of inheritance is not always less than a man’s share. Sometimes the two shares are the same when both man and woman have the same degree of relationship with the deceased, as in the case of the deceased’s parents, each of whom is assigned one-sixth of the deceased’s estate.
Similarly, a single half brother and a single half sister, who have the same mother as the deceased, inherit equally, with a share of one-sixth given to each. Sometimes a female heir takes more than a male heir as in the case of a single daughter who takes half the estate, while the rest of the heirs share the other half. Two or more daughters take two-thirds of the estate if the deceased has left no son, and the remaining one-third goes to the rest of the heirs.
Thus, shares of inheritance differ according to situation. A reduced share is given to a woman when she is in the same degree of relation with the deceased as a man, but their financial and social responsibilities differ, as in the cases of spouses and sons and daughters. These differences are in accordance with a rule common to all legal systems, precluding absolute equality between individuals who have different legal positions. The Islamic law of inheritance is in line with this rule in all its details.
To sum up, the document issued by the Cairo population conference, including article 4.17, should not be read or interpreted as calling for discarding any rule of the Islamic law of inheritance. It should be taken as a call on communities that do not give women fair rights of inheritance to establish such rights.
It also calls on communities which deprive women of some of their rights to stop such unfair treatment. Both points are incumbent Islamic duties.