5.3 Discussion
5.3.1 Internalisations of the Dominant Discourse
Lest we believe that only male petitioners subscribe to the idea that wives are compelled to fulfil male sexual need, fatwa F70 shows that women also internalize the belief. Here the female petitioner who was sexually molested as a child feels forced into consummating her arranged marriage and resorts to the Mufti to argue for an annulment. She says:
My ‘husband’ knew about my traumatic childhood experience but forced kissed me and touched when I was sleeping…i cried in the bathroom because I felt violated and hurt. I really do not like him, and I feel like I can’t full fill (sic) my duty as a wife towards him. How can I love someone when I was forced into this?
Her trauma and pain are mediated through what she considers her “duty as a wife towards him”. She has internalized the dynamic of male need and female responsibility and her responsibility is intensified as duty. She is constrained by this responsibility, as she experiences a tension between her refusal, the feelings of violation, and her duty. She says further on at the end of the petition:
I know i won't be able to full fill my duty as his wife, it’s not fair to me nor to him…I don’t want this marriage. Never did. Isn’t this void?
She moves from ‘feeling’ to ‘knowing’ that she won’t be able to fulfil her duty to fulfil his sexual need, appealing to the ethical ideal of fairness to bolster her argument.
Beyond the idea that women must fulfil male sexual needs, this woman petitioner has also internalized the two divergent voices in Islam described by Ahmed (1992: 65- 66),71 namely the pragmatic legal voice, in which marriage is deemed an institution of sexual hierarchy, and the ethical voice, “virtually unheard by rulers and lawmakers”
70Askimam.org. 2011. Fatwa # 32362, 2015. Available from:
<http://www.askimam.org/public/question_detail/32362>. [Accessed 15 October 2015].
71 Refer to chapter two section 2.1.3.
and which “stressed the importance of the spiritual and ethical dimensions of being and the equality of all individuals” (65-66).
Drawing on Ahmed’s thesis, I argue that the petitioner’s argument can be understood in two ways. Firstly, she could be arguing that what is not fair to her is to be in a situation where she cannot fulfil her duty, and given her admitted failure to meet this duty on the basis of her diminished emotional and psychological capacity, she should also be released from the marriage. Secondly, she could be arguing that what’s fair to her is her right to refuse consummation and force, and to not want the marriage.
Viewed both ways, she appeals to the ethical voice as described by Ahmed, through a discourse of ethics of fairness.
I argue that there is a slippage occurring here as she simultaneously accepts and resists the dominant discourse of male need and female responsibility in favour of a subordinate discourse of an ethics of fairness in this context. This synchronic movement, once again puts her in a subjective position of power in relation to the discourse of male sexual need. For this discussion, the above fatwas demonstrate that the dominant male sexual need and female responsibility discourse and its links to a woman’s relationship with God, has been internalized by ordinary men and women in the fatwas under discussion, and is often offset by another discourse, that of fairness.
Muftis too who mediate theological and moral concepts into society through sermons, popular literature and fatwas, have understood the prioritizing of male sexual need and female responsibility as the dominant discourse. For example, in fatwa # 15104, hereon referred to as fatwa G72, a newly-wed female petitioner asks whether she can avoid washing her hair during the ritual purification required after sex, because the frequent sexual intercourse and subsequent ritual washing has created sinus problems and headaches for her. Citing a Hanafi textual source, the student mufti grants her a concession but still prioritises male sexual need even in the face of her pietistic ritual and biomedical concerns. He says in fatwa G (seeAppendix 2):
72 Askimam.org. 2011. Fatwa # 15104, 2007. Available from:
<http://www.askimam.org/public/question_detail/15104>. [Accessed 15 October 2015].
It is permissible for you to make masah of your head instead of washing your head in ghusl if washing almost everyday is causing you serious headaches and other sicknesses Allaamah Shaami states “A woman should not withhold herself from her husband, i.e. out of fear of falling ill due to Ghusl (bath) becoming obligatory on her.
Rather, she has been granted concession regarding washing her hair. (Raddul Muhtar, vol 1, pg 153).
In this analysis, fatwas F and G are fringe examples from other petitions on the website, and they provide a glimpse into the discourses that support the discourse of male sexual need, namely that male sexual need is a priority and female availability is a responsibility, according with the literature and further confirming that this a dominant discourse within the Muslim mind.
5.3.2 ‘Wives are Meat - Slaves are Fish’
Returning to the discussion of the main fatwa in this chapter, Fatwa C and the priority for male sexual fulfilment underpinning it, Docrat’s reference to a husband’s marital duty to provide financial support for the wife and her obligation to obedience (including sexual obedience), further stems from classical jurisprudence on marriage, which takes its cue from the laws of ownership and slavery. Consequently, marriage is described as an exchange of the dower (mahr) for sexual access and continued sexual availability for continued financial support (Ali 2003; 2010). This classical legal logic with its “gender- differentiated marital claims beginning with dower and carried through to divorce” (Ali 2006:9) also underpins Desai’s stance in two other fatwas; the first one on slavery and concubinage by Desai himself and the other on consummating a marriage sanctioned by him but generated by a student of his.
In fatwa # 17032, hereon referred to as fatwa H73, answered in August 2008, Desai replies to a query regarding the Islamic ruling concerning slave women and concubines. He refers the petitioner to what he describes as his “standard answer”
which he then proceeds to outline in three pages. Of significance is his use of the classical jurisprudential underpinnings of a Muslim marriage. He states in fatwa H:
73 See Appendix 2, referring to fatwa # 17032, Available from:
<http://www.askimam.org/public/question_detail/17032>. [Accessed 15 October 2015].
…A free woman cannot be 'possessed', bought or sold like other possessions;
therefore Shariat instituted a 'marriage ceremony' in which affirmation and consent takes place, which gives a man the right to copulate with her. On the other hand, a slave girl can be possessed and even bought and sold, thus, this right of possession, substituting as a marriage ceremony, entitles the owner to copulate with her. A similar example can be found in the slaughtering of animals; that after a formal slaughtering process, in which the words, "Bismillahi Allahu Akbar" are recited, goats, cows, etc.; become "Halaal" and lawful for consumption, whereas fish becomes "Halaal" merely through 'possession' which substitutes for the slaughtering...
In other words, just as legal possession of a fish that has been fished out of the water, makes it Halaal for human consumption without the initiation of a formal slaughtering process; similarly legal possession of a slave woman made her Halaal for the purpose of coition with her owner without the initiation of a formal marriage ceremony.
The classical jurisprudence differentiates between wives and concubines, but the two relationships share a similar legal construct that prioritises male sexual fulfilment.
Another fatwa # 30630, hereon referred to as fatwa I74, and dated November 2014, in response to a question about the appropriate behaviour for consummating a marriage prior to the “ruksati” which the scholar jurist defines as the “customary handing over of the wife into the custody of the husband”, explains the scope of the husband’s right to sexual fulfilment as ‘he pleases’. The answer states:
In principle, once the contract of nikāh has been concluded, the husband is entitled to sexual intimacy with his wife. The wife has the right to refuse his sexual advances or to travel with him until he submits the mahr mu‘ajjal (the mahr due immediately).
After submission of the mahr mu‘ajjal, the husband is at liberty to take her where he pleases.
These fatwas demonstrate that the discourse that prioritises male sexual need is a consequence of the classical legal logic of a Muslim marriage. It is accompanied by discourses of obedience and financial support reflected in two concepts of qiwāma and wilāya .
74 Askimam.org. 2011. Fatwa # 30630, 2014. Available from:
<http://www.askimam.org/public/question_detail/30630>. [Accessed 15 October 2015].
Qiwāmah generally denotes a husband’s authority over his wife and his financial responsibility towards her, and …wilayah generally denotes the right and duty of male family members to exercise guardianship over female members… (Mir- Hosseini, Al-Sharmani and Rumminger 2015: 1).
The term qiwāma, although not mentioned in the Quran, derives from the term qawwamun (meaning protectors and maintainers) in Q 4:34. As noted in chapter two, this verse has been used to assert a husband’s right to command and discipline wives.75 According to the above scholars, by relying on a notion of femininity that is constructed normatively as weak, requiring protection and guidance, and a masculinity which is constructed as strong, powerful and dominant, “these two concepts play, and continue to play a central role in institutionalizing, justifying and sustaining gender inequality in Muslim contexts”(2015: 1). In addition, fatwa C also establishes qiwama through well-known hadith.
The discussion of qiwama and wifely obedience adds substantive theoretical form to the argument that male sexual need is a prominent discourse, and further to this Docrat makes reference to women bowing to husbands, which reflects his Deoband gender ideology. This ideology is characterised by male domination and priority and female subordination and submissiveness to men, collectively considered as a divinely sanctioned social order. In an overview of second generation influential scholar Ashraf Ali Thanwi’s writings on women, and their influence on the women of the Deoband-led proselytizing movement the tabligh jamaat76, Ambreen Agha suggests that this ideology constructs women as precious “objects” or “jewels” that adorn the house. Women are “exclusively accessible to their husbands” and male domination and female submission is rationalized as “an act of God” (2015: 7).
In addition, the idea that the wife`s God-believer relationship is mediated by her husband is also underpinned by the body/ spirit dichotomy found in the gender ideology of the Deoband legal school. Through an in-depth analysis of Thanwi’s book
75 See chapter two, section 2.2.
76 For an explanation of this movement, see Vahed (2000: 46). He describes the tabligh jamaat as a proselytizing, pietistic, grassroots movement which is an offshoot of the Deoband movement, allied to it, and concerned with providing religious guidance on all matters. It is always led by Deoband-trained or Deoband-affiliated ulama.
for women, the Behishti Zewar, which is still in use in South Africa today, Metcalf suggests that the Deoband reformers’ goal was to establish a correct hierarchy in all areas. This included women’s position, which was determined in terms of a hierarchical gender ideology arising out of classical legal specifications.
In a period of alien rule and disruptive change, the reformers were driven to establish boundaries for belief and behaviour that would ensure order among humans and between humans and God. Women were to be subordinate to men, children to their elders, [and] the humble to the great... (Metcalf 1990: 37).
In this way “proper hierarchy had to extend from earth to heaven” (37). Scholars show that women’s subordinate inferior status emphasised the body/ soul dichotomy prevalent in classical texts. Women are considered as akin to the body, sensual, irrational and physical, while men are akin to the soul, stronger in mind and intelligence, rationally and spiritually superior (Anwar 2006; Shaikh 2004).
Similarly Thanwi’s work “portrayed women as having a weaker nafs (self) and aql (intelligence)” while his writings, which “favour female submission and subordination, are held in high esteem and his teachings adhered to in daily lives”
(Agha 2105: 6). Desai’s Darul Ifta mufti-training institute includes some of Thanwi’s texts in its curriculum, providing evidence that Desai and his students are influenced by Thanwi’s work.77
This hierarchical gender ideology appears to be a dominant orthodox perspective in various other Muslim discursive spaces. As Izugbara (2004: 16-18) has shown,78 the binary of male and female sexuality prioritizes male sexual dominance and privilege.
He shows how Quran and hadith are also used to encourage androcentric notions of male and female sexuality and sanction male control of women’s sexuality. Similarly, in fatwa C, Docrat uses two Prophetic traditions (hadith), as a strategy to convincingly prop the male sexual need discourse. This accords with assertions in the literature that
77 Refer to: http://www.daruliftaa.net/index.php/courses-admissions.
78 Refer to section 2.3 in chapter two. Izugbara argues that the dominant narrative of Q2: 223 combined with that of numerous ahadith that “good women do not refuse their husband sex” is internalized by women themselves, placing them in a self-coercive position.
religious texts are employed in formulating normative discourses around sexual health, agency and expression (El Fadl 2001; Mir-Hosseini, Sharmani & Rumminger 2015; Shaikh 2004; Shaikh, Hoel Kagee 2011).