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Divorce in Lebanese Muslim Shi`i Jurisprudence: A Reform Law?
Abstract
The paper will examine the subject of divorce specifically divorce sans the husband’s approval (khul’) in contemporary Lebanese Islamic Shi‘i jurisprudence. Historically, the wife was denied divorce without the husband’s approval except under cases of extreme duress. However, recent legal reforms in Islamic law pertaining to gender in Lebanon and in Iran have opened the subject for wider legal debates. In Lebanon, these legal changes emerged within the wider socio-political and religious reform projects of scholars such as the late Muhammad Mahdi Shams al-Din. In the last three decades, Shi‘i scholars have inextricably linked the issue of the wife’s right to divorce without the husband’s approval to the subject of the authority of the jurist-guardian (wilayat al-faqih). This link was established in Lebanon by Muhammad Mahdi Shams al-Din in response to debates that took place in Iran on Khomeini’s legal theory of wilayat al-faqih. Consequently, two opposing legal views (absolute authority versus restricted authority) adopted by different Shi‘i jurists emerged. I will shed light on these competing legal views through an examination of both the traditional and the contemporary juristic manuals and texts. I will specifically analyze Muhammad Mahdi Shams al-Din’s unstudied work, The Breaking of the Marital Relation (Fasad al-`alaqah al-zawjiyyah), in addition to legal manuals and Islamic normative texts such as Jawahir al-Kalam, Tafsir al-Tabarsi and Tafsir al-Amthal that have been traditionally used to bring to light this issue. Shams al-Dīn, then head of the Supreme Islamic Shi‘i Council (SISC) and overseeing the religious courts in Lebanon dealing with Personal Status laws (marriage, divorce, child custody, inheritance laws), witnessed firsthand women’s suffering, loss of rights, and the long court battles when a husband refuses to divorce. The injustices committed against women by some men have prompted Shams al-Dīn to find the juristic basis for the curtailment of men’s power and to defend women’s rights to custody, maintenance, and deferred bridal gift. Shams al-Din examines in the aforementioned work the scope and limits of the jurist’s authority, and whether such authority allows the jurist to effectuate divorce sans the husband’s approval. Shams al-Dīn’s understanding of the concept of the jurist’s authority over the unwilling husband coupled with his theoretical considerations on marital relations has wider implications for Lebanese Muslim Shi‘i women and Ja‘afari Shari‘ah courts in Lebanon.
Discipline
Religious Studies/Theology
Geographic Area
Lebanon
Sub Area
Islamic Studies