7.3 Discussion
7.3.2 Discussion of the Answer
7.3.2.1 Societal Discourses
In addition to being informed by the voices of female petitioners on his website (as divulged in section 7.3.1 above), it can be surmised that Desai emphasizes mutuality, and discourages male force and anger in fatwa A, because he is moreover aware of ideas of equality and mutuality in contemporary societal views of Muslim minority contexts. He is conceivably cognizant of nuances in gender relations in minority contexts like South Africa, where gender symmetrical discourses on sexual health rights exist.
South Africa, as a signatory to CEDAW, has committed to ensuring the sexual reproductive health rights of all women (Department of Health 2011). The Department of Health draft on sexual reproductive health rights (2011) sketches guidelines for the protection of sexual and reproductive health rights of both men and women under the South African legal system. It stipulates:
Sexual health requires a positive and respectful approach to a person’s sexuality and sexual relationships. To be sexually healthy, people need to be able to have pleasurable and safe sexual experiences, free of coercion, discrimination and violence. …… For people to have and keep their sexual health, their sexual rights must be respected, protected and fulfilled…. (Department of Health 2011: 3).
In addition, South African legal discourses are also enmeshed with intra-community debates within the minority Muslim community. Potential conflicts arise out of the two Constitutional imperatives of freedom of religion and right to equality in such a way that the traditional religious practice and understanding of a Muslim marriage encompasses discriminatory practices that do not meet Constitutional imperatives of equality, with the result that Muslim marriages remain unregulated and Muslim wives are severely disadvantaged (Amien 2006; Amien 2010; MacDonald 2010; Rautenbach 2009; Jeenah 2004).
Recent case law points to Muslim women increasingly turning to the South African courts for relief in difficult marriage and divorce situations. Often these court rulings are in contravention of the classical Islamic jurisprudential marriage rules, compelling ulama intervention. Ulama bodies like the KZN Jamiatul Ulama (The Council Of
Muslim Theologians) had, through its inclusion in the United Ulama Council of South Africa UUCSA, participated in developing the latest Muslim Marriages Bill as part of a process towards the recognition and regulation of Muslim Marriages in South Africa (UUCSA 2011; Vahed 2000: 65). According to the darulfiqh website, Desai is an executive member of the KZN council of theologians (Jamiat), meaning he is at least exposed to the debates and contestations of the South African Muslim Marriages process.91
The linguistic patterns in his answer above point to Desai’s shift from prioritising classical legal doctrines on sex in marriage, and could mean that the above societal and institutional discourses provide jurists like him with an overview of modern expectations of sexual intimacy in marriage as infused with notions of mutual consent and reciprocity, and clashing with “the entire edifice of classical thought on sex and sexuality” (Ali 2006: xxvi).
Desai’s strategy as informed by his context within South Africa and by his petitioners’ expectations as outlined herein, is to discourage the husband from
“forcing” his wife. His rationale is that it will lead to the wife feeling used for sex and to feelings of ‘demoralisation’ and finally to marital breakdown. In this way, there is also an additional tension between the discourse of male sexual needs rights and that of the wife’s feelings and morale in the mufti’s answer so that the wife moves into a position of power, in that it is assumed that if she feels used in the sexual act she will feel demoralized and exert further choice of non-consent, resulting in marital breakdown.
I will extrapolate from Desai’s viewpoints of this in the discourse on health and well- being in the next chapter. For now, this discernible trend to downplay the dominant discourses of male sexual priority and female availability and divine sanction of these, particularly in minority Muslim contexts is evidenced in other fatwas located in minority contexts.
91 Refer to chapter one section 1.2.4 for more detail.
In fatwa # 19494 (hereon referred to as fatwa U92) from South Africa for example, the petition focuses on the issue of custody, but mentions a woman’s refusal to consummate her marriage. The question and the answer deals only with the Islamic legal custody concerns without further mentioning the wife’s refusal to engage in sex.
Similarly, in fatwa # 28508 originating in the United States (hereon referred to as fatwa V93), and found in the website’s category of ‘miscellaneous fiqh’, dated March 2014, the female petitioner asks for clarity on what constitutes a type of divorce called khula94. She speaks about both herself, her husband and an imam from her community, explaining her reasons for refusing sex. Notably these reasons are not valid ones according to the legal logic of marriage
I was upset i had refused to have marital issues w my husband since he would introduce me as his friend instead of as his wife to his coworkers.
In his answer the Zambian jurist says
….By you refusing to have conjugal relationship due to personal reasons with your husband does not mean the child you are expecting is illegitimate, nor does it mean you are divorced from your husband….
The jurist ignores the traditional idea of a husband’s right to sex and wife’s obligation to make herself available. He instead foregrounds her question on what constitutes a khula, in addition supporting her refusal, by accepting “personal reasons” as a justification.
This adds to the impression that there is a trend in askimam.org fatwas to downplay the dominant discourse of male sexual needs rights, and indirectly sanction a woman’s right to refuse. It speaks to the notion of reciprocal desire raised in the last chapter and surprisingly demonstrates that many muftis, by virtue of their silence in the face of overwhelming legal support of male sexual rights, are favouring reciprocity and mutuality within marriage.
92 Askimam.org. 2011. Fatwa # 19494, 2011. Available from:
<http://www.askimam.org/public/question_detail/19494>. [Accessed 15 October 2015].
93 Askimam.org. 2011. Fatwa # 28508, 2014. Available from:
<http://www.askimam.org/public/question_detail/28508>. [Accessed 15 October 2015].
94 A form of divorce where the wife secures her release from the marriage by financially compensating the husband (Mansoori 2009: 133).
Having outlined lived experiences as articulated by petitioners in the fatwas, and muftis’ responses to normative male sexual rights discourses in the context of modern marriages of mutuality, I now focus on marriage as an imperative and the techniques Desai proposes for protecting it.