sexuality found in foundational sources will prove counterproductive to keeping the marriage intact and subsequently maintaining the stability of the family. This explains the trend to downplay male sexual rights and female sexual availability and the trend to rely instead on discourses of mutuality and health and well-being. In doing so they meet the lived realities of petitioners and provide a means to navigate between the two paradigms of a Muslim marriage, moving from the legal, where ideas of dominion produce undue systems of control in Muslim marriage, towards the ethical, where ideas of mutuality and reciprocity preside.
Muftis’ employment of the discourse of health and well-being however appears inhibited. Depending on varying theological positions, they displayed a clear delineation in their responses to physical health as compared to other facets of health;
they locate physical health within a biomedical ethical space, and non-physical health within the spiritual and jurisprudential space.
Further to this analysis and the argument in chapter eight that muftis exhibited three responses to non-physical health, an investigation into the website indicates a fourth potential response characterized by the inclusion of someone who is not a mufti. In this scenario, the mufti brings in a professional allied health professional, namely a sociologist with a background in psychology. The presence of Sister Fadila on the website indicates Desai’s inclination as the head mufti to diverge from the normative position and to recognize to some extent emotional and mental discontent as a therapeutic health concern that warrants professional input outside the ambit of a jurist’s expertise. It implies an epistemic shift in relation to traditional conceptualisations of emotional and psychological health and illness and opens up the possibilities of treatment based not only on a biomedical ethic that prioritises physical health concerns in the sexual realm, but perhaps also on a therapeutic ethic that prioritises mental and emotional health too.
Human rights activists working in the area of sexual rights have suggested that the best way to “positivise” sexual rights and give them legal muscle is to link them strategically to health imperatives (Mattar 2008). The trend toward positivising sexual rights is also evident in the 2011 South African Department of Health draft on sexual reproductive health rights (Department of Health 2011). I have argued above that when it comes to physical health concerns, muftis consider both the ethical logic of marriage and the biomedical ethics of health. When muftis use these two ethical paradigms to innovate legal rulings that divert from normative rulings based on the legal logic of marriage, they transform the ethics of marriage into legal concessions.
This has the potential to ‘positivise’ women’s sexual health rights thereby expanding what is permissible in terms of sexual agency. Aware of fatwa mechanisms, Frank Vogel (1996: 269) has observed how the “fatwa method” can “lend flexibility even to compulsory legal determinations” so that multiple legal outcomes on any single issue can be extracted. This points to the potential for a fiqh that is responsive to changing circumstance as others have suggested (Ai 2003; 2006; Mir-Hosseini 2009).123 In this instance, the change pursues an ethical paradigm which is located in therapeutic terms
123 Refer to chapter two, section 2.1.3 for the discussion pertaining to this suggestion.
of other medical and allied professionals, particularly psychologists and social workers.
From the above theoretical positions it can be extrapolated that if muftis on askimam.org afford credence to the female sexual emotional and psychological well- being as a health imperative that requires external allied therapeutic health interventions as a matter of routine, then social, psychological and emotional sexual health complaints of wives might prompt muftis to locate their answers both within the ethical logic of marriage as well as an ethical paradigm allied within the therapeutic terms of allied health professionals. This proclivity is evident in Sister Fadila’s approach as noted in chapter eight.124 For muftis, hypothetically, this would mean that in the instance of the suicidal petitioner in fatwa C, Docrat might have referred him for external professional interventions. In another hypothetical scenario where severe emotional and psychological afflictions arising out of experiences of sexual molestation is articulated by the female petitioner in fatwa E and F, the first mufti Khan might have referred her to a psychologist or other allied health professional instead of advising her to continue with the arranged marriage. If she did continue with the marriage, as in fatwa F, the second mufti Siddiqui might have done the same in terms of protecting her health. Instead he offered legal mechanisms to alleviate her suffering.
As with the biomedical ethical space, this therapeutic ethical space might provide further leeway for muftis who are faced with couples whose lived experiences of marriage prioritize mutuality and reciprocity, to offer further concessions, and in addition to therapeutic mechanisms to offer legal mechanisms which enable women’s sexual agency while remaining true to the jurisprudential marriage framework.
To illustrate, Siddiqui above might have referred his petitioner for both allied health interventions based on her health state, and further suggested more rigorous legal concessions to terminate the marriage. As the fatwa currently stands, he does enact a legal mechanism based on her “feelings”, but these are mediated by a third party requiring the husband’s cooperation. Siddiqui might suggest too that she be granted
124 Refer chapter eight section 8.3.2.4, in which Sister Fadila’s response in fatwa T is to refer the petitioner and his family for external counselling.
either a faskh or that she use a khula mechanism to exit the marriage.125 In another hypothetical scenario, Desai in fatwa A, instead of just discouraging force in spousal sexual relations as he does, might outrightly prohibit it in mitigation of the psychological and emotional health implications which he alludes to.
As with physical health, which muftis employ in an ethical paradigm located in biomedical terms, this opens up the possibilities for muftis to also positivise sexual rights by creating links with other dimensions of health, which may be employed in an ethical paradigm located in therapeutic terms. In this way Muslim women’s lived marriage experiences of sexual agency in modern contexts might be transformed so that their ‘desires, experiences and expectations’ within the sexual realm are given weight by virtue of the complementarity of the discourse of health and well-being with the discourse of mutuality, and the productive tension of these two discourses with the prominent male sexual rights discourses.