SHAFAQNA –
The Glorious Quran is considered the first source of Islamic legislation. But this supremacy has been restricted, theoretically and practically, to the cases where the entire text contradicts the Quran or when two Hadiths contradict one another. In this case, we take the one that conforms to the Quran and discard the other. Yet, there is a third case whereby the contradiction of the Hadith and the Quran is about generalization and specification. In this context, the methodology adopted by the late Sayyed Muhammad Hussein Fadlullah (ra) stipulates that the Quran is the criterion according to which the limits of the Hadith implications are determined. In this case, we adopt the limited Quranic implication over the broad Hadith implication. The Quran would be acting as evidence for the narrations that lack objective evidence and that seem to be generalizing.
We might be in need of this more than any time in the past, since we are facing increasing numbers of problems. And when problems increase, we might have to review the applied methodology, just as in sciences.
Family jurisprudence is one of the subjects that is in dire need of this methodology, for many of its results did not take into consideration the jurisprudence of the Quran as compared to that of the Hadith, and we find ourselves as having practically abandoned the Quran in the world of induction. There are also some other theories which consider that we are unable to understand the Quran except through the Hadith, which practically annuls the Quran.
Example:
To demonstrate the importance of the independent Quranic jurisprudential study, we cite the example of the woman’s sexual right. In this case, the Late Sayyed Fadlullah (ra) said: “The general well-known Fatwa is that the husband should only respond to the wife’s desire for sex once every four months, according to certain Hadiths…. But we believe that the husband should respond to his wife’s desire in the normal cases if he is capable and even if he has no desire… for we inspire from Allah’s saying: “… and they have rights similar to those against them in a just manner” (2:228) that the right of sex, just as it is a right for the husband, is a right for the wife too”. ([1])
This outcome was the result of the personal judgment (Ijtihad) methodology which determines the limits that the Hadiths should not overstep. This was reflected in several subjects.
In this paper, we will go over what the Holy Quran said about the family, indicating the issues and problems that should be studied at length in the future.
In this respect, we point out to two axes:
The first axis: The institution of marriage and what is associated to it. In this axis, we will try to unravel the philosophy of marriage in Islam and the principles it is founded on, which would act as the criteria that define and control the legislations of the particular issues that include:
1- The conditions of marriage: parity of religion, puberty, difference of sex (and here the problem of same-sex marriage can be raised), the kinship prohibitions and the like.
2- The principle of love and mercy, for Allah says: “And among His Signs is this, that He created for you wives from among yourselves, that you may find repose in them, and He has put between you affection and mercy. Verily, in that are indeed signs for a people who reflect” (30:21). Here, we find four pillars: (1) One soul (2) rest or tranquility (3) affection (4) mercy or compassion, being the four elements that comprise the frame that outlines a successful marital relationship.
3- To abide by Allah’s limits([2]), which is the legal dimension of the mutual rights and duties, which allows us to understand that marriage has a spiritual function that enables man to ascend in his relation with the other according to the framework of principles and values.
4- The marriage should fall between the two limits of retaining [the woman] in good fellowship or setting [her] free in kindness([3]). Thus, we might deduce from this the need for the judiciary to interfere to fulfill divorce on account of the absence of one of these two options, and not as a worshipping rite linked to abstinence from sustaining the wife.
5- Financial relations between the husband and the wife:
– The principle of the independence of each of them in his/her own money.
– The husband’s duty to sustain his wife.
– If the wife takes part in the domestic expenses, does she become a partner, up to a certain rate, in being in charge, since Allah says: “Men are in charge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women)” (4:34)?
6- The rights of the husband and the wife:
– The right of sex.
– The right of brotherhood in faith, since they both remain brothers and sisters in faith, and they have to abide by all the rights this brotherhood demands.
6- Discord in marriage relations and it includes
– Desertion, which is divided into:
· The wife’s desertion
· The husband’s desertion
– Breaches
– Divorce of all kinds
– Running the differences after divorce: “Do not forget liberality between yourselves” (2:237) and: “A mother should not be made to suffer because of her child, nor should he to whom the child is born (be made to suffer) because of his child” (2:233) in a way that would affect the mental and educational health of the children and could make both of them lose their respect to one another. Here the problem of custody could rise. Could we leave it to the religious judge to determine how the second Ayah, which says that the parents should not suffer, should be applied? There are no constant circumstances or situations here; rather, they differ as the time and place differ…
The second axis: The principles that govern the family relations after the children are born, whereby the husband becomes a father and the wife becomes a mother, and filial relations with the parents and sibling relations among the children themselves emerge.
We will not get into the issue of inheritance here, because it is associated with the financial system that the family constitutes a part of, not to mention that it is a compulsive matter that man has nothing to do with, for it is a law imposed after man’s death, while what we want to discuss here are the family relations between the family members while they are living
In this axis, we can refer to the following points:
The relationship with parents between kindness and obedience: We notice here that the Quran attaches such relation to kindness: “and kindness to your parents” (17:24). Thus, the child does not have to obey the parents in all what they want. When he is mature enough, the child can decide what major he wants to specialize in or which girl he wishes to marry. Here, the mother or father becomes a sister or brother in religion responsible of advising or enjoining good and forbidding evil.
2- Thanking the parents (appreciating their efforts). Allah says: “Show gratitude to Me and to thy parents” (31:14).
3- The parents’ responsibility: Emotional embracement.
4- The responsibility of [ensuring] the continuity of values (upbringing).
5-The individual responsibility and its manifestation in the family relations: “But if they strive to make thee join in worship with Me things of which thou hast no knowledge, obey them not” (31:15).
6- Things related to marriage: breastfeeding: an emotional responsibility for the mother and a financial and appreciative responsibility for the father.
Based on all this, we believe that looking thoroughly into what has been stated in the Holy Quran can develop the theoretical and conceptual framework that would allow us to better understand the Islamic theory that should act as a general reference for interpreting the connotations. It is very unlikely that the Islamic jurisprudence is founded on connotations that do not necessarily have any theoretical or objective linkage. This can be the result of a methodological problem in the way we approach the Quranic study; an issue we need to study thoroughly.
* A paper by Sayyed Jaafar Muhammad Hussein Fadlullah, presented as part of the 3rd annual jurisprudential workshop held by Al-Mahdi Institute in Birmingham, UK, under the title ‘Family law in Islam; between the demands of fiqh and society’:
([1]) Fadlullah, Sayyed Mohammad Hussein, Fiqh Al-Hayat – Al-Malak, Beirut, Lebanon, p. 76.
([2]) Allah says: “These are the limits of Allah, so exceed them not”; “and whoever exceeds the limits of Allah” and: “Then if you fear that they cannot keep within the limits of Allah”.
([3]) Allah says: “then either retain them in good fellowship or set them free with liberality, and do not retain them for injury, so that you exceed the limits” (2:23).
Source : Bayynat