Inscribing Islamic Shari‘a in Egyptian Divorce Law

2.1 Traditional Islamic jurisprudence (fiqh)

Today, much of Egyptian family law is codified in the form of modern state legislation applied by civil courts. In order to understand the significance of this, it is important to have an understanding of how shari‘a emerged and developed. Shari‘a is a highly complex concept referring to a vast body of historical, social, political, cultural, and religious developments. In scholarly literature, this is frequently referred to as ‘Islamic law’ or as ‘sacred law’.² For the purposes of this article, it is important to note that shari‘a was developed by scholars (fuqaha’) who, for a long time, were independent of the state and were not government functionaries.³ A second feature worth highlighting is the fact that Islamic scholars divided shari‘a into a system of religious, ethical, and legal rules enforceable by courts (see further subsections 6.2 and 6.3).

The classical scholars considered marriage to be a contract established by bilateral agreement. According to the Muslim jurists, marriage was in part an act of worship (‘ibada) and not purely a human transaction (mu‘amalat).⁴ However, in the legal writings of Muslim jurists, the contractual dimension took priority over the religious and ethical dimensions. According to the treatises of classical Islamic jurisprudence (fiqh), the male head of a household, rather than the couple, stood at the centre of the family. It is worth noting that classical scholars used the word ‘nikah’ to signify marriage (zawaj), which literally meant intercourse. Jurists may have varied somewhat in the emphasis placed on the couple’s (or the man’s) sexual enjoyment as opposed to intercourse as the key to legal procreation, but the marriage contract is, first and foremost, for the establishment of licit relations.⁵ Marriage gave rise to interdependent but gender-differentiated rights and obligations. Concerning spousal duties, the man was responsible for providing his wife and children with maintenance in exchange for wifely obedience. Marriage was not considered a permanent institution, but a contract: the man had the unilateral right of repudiation, while the wife could request divorce from a judge in specific circumstances.

2.2 Legal rationalisation and codification in the 19^th and 20^th centuries

Muslim family law was gradually transformed over the 19^th and 20^th centuries through organisational, procedural and substantive reforms. Following the formation of a modern Egyptian state in the 19^th century, a centralised and hierarchical judicial system was developed with the parallel promulgation of legal codes based on European models as part of a process of legal rationalisation which involved standardisation and systematisation.⁶ Simultaneously, the jurisdiction of shari‘a courts became restricted to the domain of family law, and personal status (al-ahwal al-shakhsiyya) was invented as a distinct category of law.⁷ The consignment of religion to the domain of the family was an important government tactic, whereby the state defined ‘what is within its competence and what is not, the public versus the private, and so on’.⁸ However, this does not mean that this area fell outside the purview of state intervention.

Legal rationalisation and codification involved a rethinking and reconfiguring of key Islamic symbols and meanings by Islamic reformers so as to better accommodate the needs of modern state-building. Muhammad Abdu (d. 1905) and Rashid Rida (d. 1935) figured prominently among these reformers. Lombardi has called the tradition within which they worked ‘utilitarian neo-ijtihad’.⁹ The Muslim reformers put considerable stress on Islamic principles such as the hadith ‘no harm and no counter-harm’ (la darar wa la dirar) to advance notions of the common good. During the same period, the Egyptian family – re-conceptualised as the unit of the nuclear family (al-’usra) – increasingly came to be considered as central to the welfare of society as a whole and thus an object of state administration.¹⁰ Furthermore, nationalist discourse from the mid-19^th century saw the Western-derived ideal of companionate marriage and the nuclear family as fundamental in constituting the nascent Egyptian nation-state.¹¹

In the 20^th century, family law underwent a process of codification whereby it was transformed from jurists’ law into statutory law. Using the doctrines developed by Muslim reformers, the state adopted a series of personal status law codes designed to promote the nuclear family and turn marriage into a more permanent bond than that envisioned by traditional Islamic jurisprudence, where the man has the right to unilaterally repudiate his wife without providing a reason and to marry up to four wives. With this in mind, 20th century law codes subjected the male right of repudiation to several restrictions, while women’s access to judicial dissolution was expanded. The objective behind these reforms was not only to further political independence, but also to expand state control over the family.¹² The process involved doctrines from the medieval Islamic law schools being combined and fused into new legal rules.

Another important development took place in 1955 with the state’s establishment of a unified judicial system. Hence Egyptian family law today is found in legal codes determined by the state and implemented by the modern judicial apparatus of the state whose judges are trained in modern law schools instead of traditional Islamic jurisprudence (fiqh). Several scholars have argued that judges on the pre-modern shari‘a courts enjoyed a greater degree of discretion than was the case after the codification of shari‘a because they could decide cases based on different schools of law and custom. In this way, abuse of male privilege was mitigated to a certain degree.¹³ This led Judith Tucker to make the following claim:

Men and women are constructed as different entities under [Islamic] law, particularly in the sphere of family relations, where male privilege is undeniable. For as long as the law remained uncodified, the interpretations of the meaning of these differences retained some fluidity and flexibility […] But as soon as the law is codified, gendered right and gendered duty became incontrovertible points of law, brokering no adjustment or modifications except from on high.¹⁴

Although I agree with the argument regarding the open-endedness and pluralism of jurists’ law to a certain extent, I would like to suggest that codified Muslim family law as interpreted by family court judges is not monolithic, but is instead characterised by constricted pluralism. I aim to show that, alongside civil law training, the most important factors contributing to predictability in judicial decisions are time pressure and the use of computer technology.

6.1 Introduction

Muslim personal status law is highly gendered in that men and women have different rights to divorce. A husband has the right to dissolve the marriage by making a unilateral pronouncement without the approval of his wife or the intervention of the judiciary. In the following, I am going to focus on repudiation (talaq) since this is the most common form of divorce. Since the concept of repudiation is deeply embedded in traditional Islamic jurisprudence, reform efforts in the early 20^th century focused on its modest restriction rather than calling for its prohibition. The Egyptian legislature aimed to discipline husbands into becoming more responsible subjects through the legal requirement of registration and by attaching more importance to the intention behind pronouncements of repudiation than had been the case under classical fiqh.⁴⁵ Below, I look at the trajectory of these provisions in legal practice. It will be argued that, while judges often invoked Quranic principles and hadiths, seeking to instil moral virtue in believers, this tendency was partly offset by a combination of factors, such as time pressure and bureaucratic effects.

Afterwards, I turn to another central aspect of adjudication, namely the judicial dissolution of marriage. This section will try to show how family court judges integrate various social classes into what the courts regard as the essence of Islam. Earlier, it was shown that judges claimed companionate marriage as the norm in attempting to provide hegemonic definitions for marriage and gender. The persistent emphasis on mercy and amity entailed that marriages incommensurate with this ideal tended to be dissolved. This may have served to counteract and even undermine gender hierarchy, as will be demonstrated with reference to different types of judicial divorce. I begin by considering the relation between the wife’s right to divorce due to harm and the husband’s right to chastise his wife by beating. I will argue that legal practice is characterised by greater standardisation of women's rights in divorce. This will be followed by an analysis of court practice regarding khul‘, the most frequently invoked form of judicial dissolution, where a similar process is under way.

6.2 The husband’s right of repudiation: An entrenched legal concept

‘Change should come from within the heart of society’ (min ’alb al-mugtama‘)

Judge A. G., the family court of al-Salam

By far, the most common means of marital dissolution is male-initiated repudiation (talaq), which comes from the verb ‘tallaqa’, literally meaning to release a human being from an obligation.⁴⁶ In light of the fact that repudiations make up the vast majority of divorces, it is worth looking at this procedure in more detail.⁴⁷ Since none of the personal status laws in place regulate repudiation in an extensive way, legal developments in this field have largely been the result, not of legislative activity, but rather of activity within courts. This is how Egyptian family court judges formulate the issue of talaq: in line with the classical stance, they continue to construct repudiation as an intrinsic right of the husband, which comes into effect upon pronouncement:

Repudiation (talaq) comes into effect as the husband articulates it. This is in accordance with all four schools of Islamic jurisprudence⁴⁸ as well as the Prophet’s companions. The registration of the repudiation and ways of notifying the wife of its occurrence have no bearing on the right to repudiation which God has solely granted to the husband.⁴⁹

The above excerpt sheds light on how judges integrate different elements in judgments in an area not comprehensively regulated by legislation. According to the above, although personal status law requires that the repudiation be documented, repudiation has been institutionalised in Egyptian law as an inherent right of the husband that acquires legal effect upon pronunciation of a formula, without the need to notify the wife or have recourse to courts and witnesses. It becomes binding and enforceable if correctly articulated. The emphasis on talaq as the outcome of oral pronouncement raises the issue of intention, something I will return to below.⁵⁰ Since Egyptian law does not define or regulate repudiation in any comprehensive way, the judicial panel quoted above (headed by a female judge) drew upon traditional Islamic jurisprudence, examples from the Prophet’s companions, and the four schools of Islamic thought. The above paragraph was also copied into the judgment rendered by a court panel headed by another female judge. This shows how judicial discourse proceeds intertextually and dialogically, thus contributing to the creation of certain stabilised configurations of discursive practice which help to reproduce gendered relations of power by rendering them ‘natural’ and commonsensical.

Article 5 of law no. 100 from 1985 requires that a repudiation be documented by a notary (maʾdhun) within thirty days of the declaration. This notary is obliged to inform the wife if she is not present during the documentation process. According to the explanatory memorandum which accompanies the law, this amendment was intended to protect the rights of divorced wives by enabling them to claim alimony during the waiting period (‘idda), deferred dower, and mut‘a compensation.⁵¹ The certificates issued by the notary (ma’dhun) reflect bureaucratic concern with clear classifications, specifying the type of divorce as revocable (raj‘i) or irrevocable (ba’in). If repudiation occurs two times, it is considered a ‘talaq ba’in baynua sughra’, meaning that the man may remarry his wife with a new contract and dower (mahr). If the divorce is exacted three times, it counts as a final, irrevocable repudiation (talaq ba’in baynuna kubra).⁵² The third iteration of the divorce formula makes remarriage between the same couple impossible. In order to remove this obstacle, the wife must contract an intervening marriage with a different man and it must be consummated. This makes remarrying her former husband, who has repudiated her three times, lawful again.⁵³ The former husband can, therefore, enter a new marriage contract with his ex-wife and pay a new dower.

My observation of court practice and interviews with judges and notaries suggest that the legal requirement of registration is ineffective because most Egyptians are unaware of it or frequently circumvent it. Moreover, while there is considerable interaction and interpenetration of state and society in Egypt, some view the state as an alien entity. Comments by a family court judge from the area of Matariyya merit consideration here:

Most people live far from the state (ba‘id‘ ‘an al-dawla) […] In Cairo, people are more cognisant of the laws than in other parts of the country. However, they often ignore them and only abide by them if they do not conflict with their own norms. They respect the state, but do not let it interfere with their lives in any way. Furthermore, many are knowledgeable of shari‘a, but not of the law (qanun).⁵⁴

Thus, in this judge’s view such practices betrayed the limited degree of control exercised by the state in the realm of the family. The fact that non-compliance with the duty of registration does not render the repudiation invalid has led to concerns that actual practice has rendered the law ineffective. According to the Network of Women’s Rights Organisations (NWRO), oral repudiation presents many legal difficulties, particularly denial.⁵⁵ The courts usually become involved in repudiation in response to disputes over whether repudiation has occurred or over the type of divorce at issue.⁵⁶ The question is important since female litigants may ask the court for mut‘a compensation, alimony during the waiting period (‘idda),⁵⁷ and deferred dower. Yet other husbands claimed they had forgotten they’d repudiated their wives and only requested registration once the waiting period had expired. For example, a middle-aged couple with four children appeared before the family court of al-Salam. They had married in 1982 and had divorced twice: first in 1993 and then again in 1997. In June 1997, the husband divorced his wife for a third time and reinstated her on 15 July 1997 without documenting either event. In reaction to practices he deemed characteristic of the lower classes, the presiding judge displayed some consternation, and asked: ‘What is this marriage?? If you began in the “baladi” way, why do you wish to make it official now?!’⁵⁸

As mentioned earlier, the judges I observed represented the views of the elite. The above comment, used to describe marital practices which varied from the state-promoted norm,⁵⁹ evinced a class dimension, since the word ‘baladi’ (a word common in the vernacular) connotes unrefinement, vulgarity, something practiced by commoners and plebeians who live in popular and underprivileged areas. The judge quoted above saw people such as the husband before him as engaging in ‘popular antics’ (harakat baladi). This was illustrative of the attitude among several of the observed judges toward litigants from marginalised areas. The husband answered meekly that he had undergone open heart surgery and had forgotten that he had divorced his wife and subsequently reinstated her during the waiting period. Although judges interviewed held such practices to be more common in lower-class areas, court records from the upper middle-class area of Misr al-Jadida showed that the duty of registration was frequently overlooked within all sectors of society.

Much of the courts’ reasoning appeared to be motivated by a desire to discipline husbands into becoming more responsible heads of families by encouraging them to have good ethics. In the following excerpt from the family court of Nasr City, the judges placed emphasis on the moral aspects of marriage and divorce by quoting a hadith attributed to Prophet Muhammad where he described repudiation as the most detestable of all permitted actions:

In regards to the subject of the case in question, the court states at the beginning of its ruling that Islam has not permitted divorce without restrictions and that divorce is the last resort for someone who has been left no hope of living in accord with his spouse. Despite that, divorce is the most loathsome and detestable of shari‘a permitted rights (ḥalal) that God ordained in order for the two spouses to dissolve and rid themselves of the marital bond if living in kindness (ma‘ruf) and fulfilling the marital duties becomes a difficult feat. Divorce is ascribed independently for the man to exact when it becomes clear that living with his wife is no longer in kindness (mu‘ashara bima‘ruf) and that letting go with kindness (tasrih bi ihsan) is a necessity. This is in accordance with Allah’s legislation and methodology as per His word: “A divorce is only permissible twice: after that, the parties should either hold together on equitable terms or separate with kindness.” (Verse 229 from al-Baqarah).⁶⁰

The above excerpt is characterised by a configuration of properties which illustrates the dialogical nature of family court judgments where different textual fragments intersect. Before the judicial panel justified its decision with reference to legislation, it referred to a Prophetic saying according to which repudiation was the most detestable of all permissible things in the eyes of God. Afterwards, the court proceeded to state that the man had the right to unilateral repudiation, but that it should only be resorted to if marriage was devoid of kindness with reference to verse 229 from al-Baqarah. Yet, while characterised by rather complex intertextual references, the picture which emerges from the court records is that of constricted pluralism since there are clear similarities in the way judgments were formulated. These repetitive properties support the inference that computer technology is the main reason behind the shift in the law’s legitimation by enabling judges to copy the same passages into judgments over and over. This shows that the widespread use of templates may contribute to the conservation of the pluralist nature of shari‘a, despite developments in the direction of codification and bureaucratisation. Judges also appealed rhetorically to the moral principle in Quran’s sura 2 verse 229, according to which the husband should hold the wife in marriage equitably. It is not a coincidence that the court legitimated its ruling by invoking the very same hadith and Quranic verse from which some of the personal status codes were derived.⁶¹

In several other decisions handed down, family court judges included passages that repeated these ideas using very similar language. These citations are often mediated by references to contemporary legal doctrine whose reconstruction of the fiqhi background of personal status law appears to have replaced Muhammad Qadri Pasha as a point of reference.⁶² While this legal-ethical discourse reinforces marriage as a hierarchical institution privileging men, values anchored in the Quran about amity and mercy have come to occupy a more prominent place in judicial discourse in recent years, as will be shown below.

6.3 Instructing people about what is permissible (halal) and forbidden (haram) - and some bureaucratic effects

In February 2014, a husband and wife appeared before the family court of al-Salam. The husband, a policeman, had repudiated his wife for the third time. Whereas he had pronounced the first talaq out of free will, he claimed that the second and third repudiation had been pronounced due to coercion from the wife’s family. Holding guns and knives, they had threatened to destroy the office of the notary (ma’dhun) and the husband’s car. When the presiding judge asked the husband why he had not reported the matter to the police, he answered meekly that he had been prevented from doing so by the circumstances of the ‘2013 revolution’ when the streets were crowded with military tanks. The wife corroborated his story and timidly asked if her testimony could lead to someone being punished. The judge explained to her that this was the realm of the criminal court, not the family court. Similarly, a former husband argued before al-Salam family court that the wife’s family had coerced him to repudiate her the second time while the third repudiation was occasioned by a rift (fitna) between the two families.⁶³

In the previous section, we saw that many of the judgments analysed were concerned with moral and religious themes. In this section, we turn to the boundaries of moral sin, and the degree to which the state should enforce these limits. As previously mentioned, some judges believed that it fell within the purview of the family court to instruct the spouses concerning what was permissible (halal) and what was forbidden (haram). Among other things, it was important to uphold a distinction between first and second divorces vis-à-vis a third divorce. The courts, therefore, considered triple divorce a very serious matter and one in which the precepts of Islamic shari‘a should not be taken lightly. As one of the interviewed judges put it, ‘The third oath of repudiation is a very grave matter with highly religious overtones.’⁶⁴ In this section, I explore a closely related problem, namely the role of the husband’s intention in pronouncing talaq. Egyptian personal status law does not require that the husband intend to repudiate his wife. Instead it predicates the man’s right to pronounce repudiation on his mental faculty and the wording of talaq in line with traditional Hanafi precepts. However, in law no. 25 from 1929, the legislature made an exception where repudiation was uttered in a state of intoxication or subject to coercion. In these two circumstances, repudiation was considered ineffective. Traditionally, however, under the teachings of Hanafi doctrine, divorce is effective even if the husband utters it while intoxicated or under duress. With regard to all other mental states not mentioned by the law, the judge was instructed to defer to the predominant Hanafi doctrine, according to which repudiation took effect upon the correct pronouncement of a formula (whether pronounced in earnest, jest or by mistake) by a husband of sound mind and irrespective of his capacity for voluntary behaviour.⁶⁵

As we have seen thus far, observations of court hearings revealed that verbal interaction between judges and litigants was severely curtailed. Hence, judges rarely considered the defendant’s personal history and circumstances. At the same time, they applied a functional distinction between law and religion. A telling example of this was the case of a husband who regretted having divorced his wife three times due to what he claimed was a fit of rage. The legally salient issue at stake here was whether the third repudiation was legally binding or whether the husband’s anger invalidated the final irrevocable repudiation. In 2005, a divorced wife lodged a claim before the family court of Ayn Shams requesting to change the description in the repudiation certificate from a third irrevocable to a second revocable repudiation since the third repudiation had taken place in a state of intense anger (ghadab shadid) and without intentionality. The couple was married in June 1974. In November 2004, the husband repudiated his wife for a third time using the formula ‘anti taliq’. It would, therefore, only have been permissible for him to remarry her (halal) if she first married another man. However, she claimed that he had pronounced the third repudiation for the purpose of intimidating her. The husband also appeared in court and told the panel that he had not used the word ‘talaq’ during the second divorce; instead he used the formula ‘you are prohibited from me’ in order to intimidate her. The notary, nonetheless, proceeded to register it as a final, irrevocable talaq. Thus, it became legally effective despite having been uttered in a state of anger.⁶⁶

Registrars acquired more authority with respect to the documentation of marriage and repudiation during the 19^th and 20^th centuries. However, interviews with notaries suggest that they are often unpredictable agents of governance and have developed mechanisms which are not always in line with legislation and case law. An interesting insight was offered by a notary who worked in the area of Dar al-Salam. He told me that husbands often swore the oath of repudiation under the contagious influence of anger bordering on madness which, in his view, usually originated in the wife and subsequently spilled over to the husband.⁶⁷ As shown in the above example, although the husband had not intended to repudiate his wife, the notary registered it because he thought the man should be punished for trifling with this serious matter. Returning to the above case from Ayn Sams family court, the couple in question brought the matter before the fatwa committee of al-Azhar, which issued a fatwa stating that the repudiation was invalid. Nonetheless, the family court of Ayn Sham dismissed the case.⁶⁸ Subsequently, the divorcee appealed based on a ‘misunderstanding of reality’. Cairo Appeal Court formulated the following rule according to which a statement (iqrar) of talaq, though mistakenly uttered, occurs legally speaking, but not religiously:

If a man is asked about his wife and says ‘I divorced her’, but in fact he told a lie, judicially speaking his lie will be believed although between you and your God there is faith (din).⁶⁹

This case raises several intriguing points which warrant comment. First, it represents a manifestation of the way in which the limits between religious and juridical obligations are drawn by courts in practice. By construing the husband’s intention behind repudiation as a matter of religious conscience, the court recreated the fiqhi distinction between matters subsumed under the rubric of religion (din), not enforceable through court sanction, and law (qanun). Accordingly, rather than taking measures to discover the true intention behind the act of repudiation, the religious merit of the repudiation in question was construed as a matter which fell outside the competence of the courts and pertained to the relationship between man and his creator. In a similar case where repudiation had been uttered in a state of intoxication and coercion (the two mental states covered by the 1920 law), this was labelled by the Cairo Court of Appeals as a matter falling under the rubric of the rights of God (haqq Allah).⁷⁰ Hence, while the theme of religious morality was the ultimate criterion for the validity of repudiation, the judges’ practical understanding of the relevant issue was quite different. The approach adopted could partly be attributed to a bureaucratic effect since the judges were generally reluctant to amend the description of repudiation (wasf al-talaq) made by a government employee. Thus, the presence of a divorce certificate trumped claims of impaired mental state into which the judges did not probe.

Second, the case in question demonstrates that judicial orders of discourse are a domain of struggle within the wider social formation, as people use courts alongside other religious institutions belonging to the state. Sometimes, parties to a case before the family courts had recourse to fatwas from Dar al ifta and al-Azhar, which together with its Fatwa Council are officially under the power of the state. They address many of the same issues as family courts, basing their decisions mainly on Islamic shari‘a, except that a fatwa is not binding on its recipients.⁷¹ In light of this, it is interesting that the researched family courts accorded no legal weight to fatwas issued by other institutions tasked with defining shari‘a for the Egyptian state. Instead, they regarded themselves as the authoritative voice of the law. By differentiating between matters that pertain to religion and matters that relate to the law (qanun), judges also limited the authority of Islamic scholars to the religious domain. In turn, this served to bolster the role of the judges in the sphere of personal status law.

A case submitted to the family court of al-Salam seemed to confirm that the approach adopted by Ayn Shams family court and the Cairo Court of Appeals does indeed represent dominant practice. A man appeared before the court claiming to have repudiated his wife in a state of anger after being subject to coercion from his wife’s family. The issue sparked a lively discussion among the panel of judges, who were in the process of writing up verdicts after that day’s session. Before the court made a final decision on this case, one of the judges challenged the way the presiding judge had interpreted the legal text. This particular judge, who had a predilection for engaging in lengthy legal debate, lit a cigarette and began pacing up and down the room. He reminded the panel that al-Azhar’s Fatwa Council had issued a fatwa stating that a repudiation uttered in a state of anger was invalid. This sometimes made him clash with the presiding judge A.T. who used standard forms to ensure regularity and in order to save time. In response to this internal criticism, the presiding judge explained that, while the court was bound by the Hanafi school in a doctrinal and legal sense, the central issue for the judge was that the notary, as a civil servant, would not have registered the repudiation if it had contravened the law: ‘The notary is a state employee. If the occurrence of repudiation (talaq) has been registered in the divorce certificate, it should not be changed.’⁷²

This case illustrates how judges, in their routine activities, act not just in respect of formal legal criteria, but also with regard to categories constituted as normal in light of the practical task at hand, and within the hierarchical structure of judicial panels. While legislation stipulated that repudiation required intention, the courts based their rulings on obvious facts. The discussion was closed when the presiding judge told his colleague to sit down on his chair and continue his work on writing up verdicts so that they could all go home: ‘Khush fi ’adaya tania. Awwiz ’anzil.’ The response of the presiding judge highlights the importance of observing the routine and the influence of time pressure. Read together, these decisions seem to indicate that, while legislation attempted to protect women from arbitrary repudiation, in practice, this has been partly counteracted by bureaucratic effects where the authority of legal documents triumphs over intent to divorce.

6.4 Judicial dissolution due to harm (tatliq lil-darar): The case of wife battery

I now turn to another central aspect of adjudication, namely judicial dissolution of marriage, where a significant step in the direction of greater standardisation is also apparent. According to Islamic shari‘a, a wife has the right to petition a judge to obtain judicial divorce through the use of a legal fiction whereby the state, represented by the judge, pronounces divorce in place of the husband.⁷³ Egyptian legislative reform at the beginning of the 20th century concentrated on providing judicial relief to abused wives, who were exposed to intentional harm (darar) by their husbands, by adopting the doctrine of the Maliki school.⁷⁴

This section deals with judicial divorce on the basis of harm, the second most common reason invoked in petitions for judicial divorce. I focus primarily on cases of spousal violence before the family courts. Egyptian and international researchers have found that domestic violence is widespread in Egypt, an impression which was shared by judges I met. As one family court judge lamented, ‘Egyptians are extremely violent.’ Petitions for divorce due to harm (darar) were rife with claims of wife battery. Such claims are therefore perceived by lawyers as a particularly strong foundation for a lawsuit, as will be further discussed. Some of the judgments I researched contained chilling accounts of violence perpetrated by the husband or in-laws against the wife. The following two cases from the low-income Cairene areas of al-Zaytun and Bulaq are illustrative of this.

The three witnesses of the plaintiff (wife), who are her neighbours, testified that they saw the defendant, his sisters and his mother beat the claimant on her belly in the street and heard the defendant say: ‘Go look for the father of your baby’ (ruhi shufi ‘illi fi batnik gaybah min min).⁷⁵

The first witness testified that he saw the defendant beat and insult the plaintiff, saying to her: ‘Bitch and daughter of filthiness’ (yitla‘ din ’ummaha al sharmuta bint al wiskha). The second gave a similar testimony, adding that the defendant expelled the claimant and their child, and abstained from providing for them.⁷⁶

The husband’s right to chastise his wife has been recognised by family courts through their adherence to the Court of Cassation principles. According to the Court of Cassation jurisprudence, harm justifying judicial divorce comprises material and moral hurt that exceeds the framework of shar‘ia-regulated and permitted discipline (ta’dib). The Court of Cassation supported this view by referring to the Quranic sura 4, verse 34 which recognises the right of the husband to discipline his wife: ‘As to those women on whose part ye fear disloyalty and ill-conduct, admonish them, refuse to share their beds and beat them…’

The Court of Cassation therefore sanctioned the husband’s right to discipline his wife, but established limits to the level of physical violence that can legitimately be used. Beating should only be used by the husband if absolutely necessary to discipline a disobedient wife and is considered a detestable permissible act (halal makruh):

Resorting to beating should only occur after scolding the wife and abandoning her in bed. This is the third mechanism to be employed towards reconciliation. The husband should only proceed with beating in cases of deviation (inhiraf) and preponderance of corrupt manners (ghalabat al-akhlaq al-fasida). It can only be used if the man (rajul) deems that the only way to deter a woman (mar’a) from her transgression (nushuz) is by beating (darb) her. Therefore, it should be implemented in cases of extreme necessity, since it is considered a detestable permissible act (halal makruh). The assessment of the severity of the beating is left to the discretion of the judge.⁷⁷

The Court of Cassation’s discouragement of beating as a means of chastisement is highly significant in light of the fact that Egypt’s family courts frequently adhere to the judicial principles established by this high court. However, the Court of Cassation has established that lower courts should evaluate, on an ad hoc basis, whether beating is justifiable or not. The higher court has repeatedly stated that the criteria of harm are subjective and not objective, and may vary according to the background of the spouses, their circumstances, their level of education, culture, and their social milieu.⁷⁸ Accordingly, judges are called upon to exercise judicial discretion on the basis of their perceptions of what constitutes acceptable or unacceptable behaviour on the part of the husband.

Beside the restrictions on women regarding matters such as marriage and divorce, legal practice here touches upon hierarchical concerns of a different order, namely differences in social status and class among claimants. In other words, there is a subtle social positioning at work insofar as the criteria which justify divorce are class-based. It is worth recalling a study by Amira Sonbol.⁷⁹ She observed that Egyptian judges in the 1990s had no problem accepting violent behaviour against poor women. However, my research reveals a more stable, standardised approach to the rules governing divorce for harm. In all the areas studied, it was general practice to grant divorce for harm in cases where there was eyewitness evidence of beating (darb). Thus, in practice, judges were not prepared to recognise excessive violence as part of the husband’s right of chastisement. The same applies to the above-mentioned cases from the lower-income areas of Bulaq and al-Zaytun. In other words, class was not a factor in regard to this particular type of harm.⁸⁰

While family court operations were shown to focus on written documents, oral forms of evidence also play a leading role in this area. Since personal status legislation is silent about how harm should be proven, the rules of evidence remain regulated by the Hanafi doctrine, which places considerable trust in oral testimony.⁸¹ Pursuant to the prevailing opinion in the doctrine of the Hanafi school, the Court of Cassation requires the testimony of two men, or two women and one man. The witnesses must be Muslims because a non-Muslim cannot testify in support of or against a Muslim. While children and parents may not act as witnesses, other close family members such as brothers, uncles, cousins, or brothers-in-law often testify. In addition to requiring that witnesses be upright, they must also have seen or heard the alleged harm themselves.⁸² Thus, seeing the marks of a beating on the wife’s face without seeing the husband beat her renders the testimony incomplete. The rules of evidence in place confer considerable discretion on the judge, and the weighting of different factors may be exercised in a manner which challenges or mitigates gender bias. My observations revealed that judges had little time to look into witnesses’ backgrounds to ascertain their trustworthiness. Reliance on witness testimonies, therefore, opened up the possibility for wives to collude with family members in seeking divorce. As a result, the credibility of witnesses was frequently challenged in court by the opposing side for being biased. In some cases, the husband’s lawyer would suggest that the witnesses had been influenced to bring false testimony.⁸³ In examining the quality of evidence, several judges told me that witnesses were not trustworthy:

‘All witnesses lie’. – judge A.F.

‘Witnesses are useless since they all lie’. – judge A.T.

This is highly significant in light of the fact that witness testimony remains the type of evidence most frequently admitted in such cases. Although the judges often doubted the credibility of witnesses, I found that they nonetheless accepted this type of evidence as long as it was not clearly based on hearsay. While this sheds doubt on the reliability and efficiency of the justice system, it also helps to explain why, when petitioning for judicial divorce based on harm, women’s demands were mostly met. Furthermore, it is worth emphasising that there is a tendency among members of the judiciary of the Cairo Court of Appeals to simply equate beating with practices opposed to the pillars on which marriage should be built, namely mercy and amity.⁸⁴ In short, the discourse of mercy and amity has evolved into a powerful theme negating the husband’s right to chastise his wife by beating regardless of social background. It, thereby, undercuts gender and class hierarchies. However, it is worth mentioning that the formal intolerance for beating was tempered somewhat by the fact that judges were prepared to condone it when trying to orchestrate reconciliation.

In addition to changing social norms, I am once again inclined to attribute this tendency to time pressure and the influence of computer technology. As previously mentioned, there was little in the way of interaction between judges and litigants during court hearings. Hence, judges were inclined to overlook the individual stories of the parties and circumstances of the case, and grant women judicial divorce provided they fulfilled narrowly defined legal criteria. In this way, the court played an important role in integrating people from the lower strata of society into the increasingly dominant ideal of marriage.

6.5 Judicial divorce through khul‘ (tatliq lil-khul‘)

In 2000, the Egyptian legislature eased women’s access to judicial divorce considerably by entitling a wife to divorce her husband based on a unilateral expression of resentment (al-bughd). In these cases, a wife was required to relinquish her outstanding financial rights, return the advanced part of the dower to her husband and attend reconciliation sessions. Rather than the husband, this provision located the source of authority with the wife: in her heart and soul. Furthermore, rulings of judicial divorce by khul‘ were made immune to appeal. This represented a bold departure from traditional Islamic jurisprudence which conceptualised khul‘ as a form of divorce based on the mutual consent of husband and wife.⁸⁵ These aspects of the khul’ process motivated many women to avail themselves of the new procedure throughout the 2000s, and court records indicate that this provision became favoured among women from all walks of life pursuing divorce. At the time of writing, the majority of divorce cases being dealt with were through khul‘.⁸⁶ Thus, Egyptian lawmakers encouraged the recognition of women as more autonomous subjects.

During the first years of its implementation, the khul‘ law was met with resistance and suffered from confusion over the exact steps to be followed.⁸⁷ Article 20 in the 2000 law provoked considerable controversy, as its religious legitimacy was twice contested before the High Constitutional Court, on the grounds that it contradicted the principles of shari‘a as contained in Article 2 of the country’s constitution. In later years, judicial practice seemed to become more stabilised. Although several grey areas remain, its implementation has become a more regularised procedure. Again, administration of these cases appears to have been facilitated by the use of computer templates. As the presiding family court judge A.T proudly told me while drawing up verdicts: ‘I finish the verdict in three minutes. In three minutes she will have khul’!’⁸⁸ The judges I observed also resorted to a variety of interpretive texts which they referenced in judgments. There are many variants of templates at work in khul‘ cases. My analysis of court records showed that some judges included passages in their judgments that suggested they entertained doubts over the legitimacy of the law.⁸⁹ More often, however, they referenced the Quran, Sunna, and fiqh according to the pattern set by the High Constitutional Court in justification of their rulings. They also cited contemporary legal and jurisprudential books. Thus, religious sources play an important role in validating prevailing judicial discourse. A particular template that incorporated the interpretation of khul‘ and was provided by the High Constitutional Court in 2002 was among the templates widely adopted. In this model, the High Constitutional Court asserted that Article 20 of the 2000 law did not contradict the principles of shari’a. This interpretation was, for example, adopted and disseminated by the family court of Ayn Shams (headed by a female judge) in the following judgment:

This is in application of God’s saying: ‘It is not lawful for you, (Men), to take back any of your gifts from your wives, except when both parties fear that they would be unable to keep the limits ordained by Allah.’ It is also in accordance with the Prophetic hadith about Thabit bin Qays’ wife who hated her husband with the utmost hate while he loved her with the utmost love. She went to the Prophet (p.b.u.h) and said: ‘Separate Thabit and me for I loathe him. I lifted part of the tent to look at him in the company of other people. He was the shortest, ugliest and darkest-skinned amongst them. I would detest to slip back into kufr (unbelief and infidelity) after becoming a Muslim.’ Thabit then said: ‘O Prophet of God, order her to give me back my garden.’

The Prophet asked her: ‘What do you say?’ She replied: ‘Yes, I will return it to him and even give him more.’ The Prophet said: ‘No, only his garden.’ He then told Thabit: ‘Take back what you gave her (what is yours) and let her go.’ Thabit did just that.’ (The ruling indicated that this hadith and reasoning were cited in Ahmed Nasr al-Jindi’s book, Commentary on the law regulating the conditions and procedures of litigation in personal affairs matters, 2003 print, page 453.)⁹⁰

The judgment goes on:

It is established that at the root of its legitimation, khul‘ is a firmly authenticated provision that is permitted in Islam, for it is mentioned in both the Quran and Sunna. Its details and regulations, however, have not been expounded due to a divine rationale that has been kept from humans. Therefore, the fuqaha’ (classical jurists) exercised ’ijtihad to deduce its stipulations. Some of them found it imperative that the husband consent to khul’. The act of returning the garden from the wife back to the husband in the Prophetic saying was understood by the scholars who voiced this opinion as a sign that the Prophetic order of divorce was a form of guidance (irshad) and not an order. Another group of fuqaha’ opined that the Prophet’s order meant that khul‘ should take place whether or not the spouses had reached an agreement or without the husband’s consent, as in these cases the guardian (wali) or judge (qadi) would act in his stead. In order to facilitate the judges’ work, it was important for lawmakers to clarify which of the two viewpoints was to be followed. The contested and later amended legal text, therefore, adopted the Maliki opinion, allowing the wife to seek khul‘ if she loathed her husband and if the two mediators failed to reconcile the spouses. After consulting with the mediators, the judge could subsequently impose khul‘ on the condition that the wife repay the advanced part of the dower received at the start of the marriage. This is a way of meeting the demands of necessity without violating the objectives (maqasid) and fundamentals (usul) of Islamic shari‘a. In a case like this, separation is in the best interests of both spouses. The wife should not be coerced to live with her husband after stating that she hates life with him, that there is no way for their marital life to continue and that she fears herself unable to abide by God’s boundaries due to this resentment, all of which compel her to redeem herself and retrieve her freedom by relinquishing all her financial rights and returning the dower. The opinion that a husband’s consent to khul‘ is required results in the wife being forced to live with a man she hates. This interpretation is far removed from the essence (al-asl) of marriage as a source of love and intimacy (mawadda), and compassion (tarahum). For a wife to waive her financial rights in exchange for khul‘ is also a way to relieve her husband of the financial consequences of divorce. This should, in turn, encourage the husband not to force his wife to stay in a loveless marriage, for he would otherwise inflict a harm (darar) on her. Islamic shari‘a prohibits such a harm for it upsets the Islamic doctrine that is founded on moral superiority. It also contradicts the Islamic principle of ‘no harm and no counter-harm’ (case 201 High Constitutional Court 15 December 2002).⁹¹

This long excerpt highlights the intertextuality of judgments, the fact that they are constituted from previously produced texts, resulting in relatively stabilised configurations of discursive practice. In the above judgment, the judicial panel quoted Ahmed Nasr al-Jindi’s citation of the Prophetic hadith reported by al-Bukhari about the wife of Thabit bin Qays. This woman reportedly went to the Prophet and told him that she did not hate her husband on account of his religion or morals, but feared being unfaithful to the guidelines of Islam because she loathed her husband and could not live with him. The Prophet ordered Thabit to repudiate his wife after she returned an orchard he had given her as a dower. This was followed by a lengthy quote from the ruling handed down by the High Constitutional Court when it declared the constitutionality of the khul‘ in 2002.⁹² In it, the judges of the High Constitutional Court also described a model of marriage within shari‘a whose existence was contingent upon the presence of amity (mawadda) and compassion (tarahum) between the spouses. While defining the sensibilities appropriate to marriage, the court portrayed these emotions as righteous and pertaining to the essence of marriage itself. Consequently, if hatred distanced marital life from love and affection, the institution of marriage would weaken. The Islamic legitimacy of this piece of legislation stemmed from the attempt to preserve what was perceived to be intrinsic to marriage and the application of the Islamic maxim ‘no harm and no counter-harm’.

The fine detail of the text is thus tied to the social structures and power relations within which the law operates. The power of this discourse is also evident in judgments issued by another judicial panel of this court.⁹³ By repeating the High Constitutional Court’s jurisprudence over and over in its judgments, this particular court thus contributed to sustaining Islam as defined for the Egyptian state by the High Constitutional Court.⁹⁴ The prevalence of this and similar templates suggests that several members of the judiciary have accepted the essential components of khul‘ as provided by the Egyptian legislature and other state institutions. This was highly significant during the post-revolutionary period, which was characterised by contest over the scope and definition of Islamic shari‘a.⁹⁵ Following Mubarak’s ousting in 2011, personal status law emerged as an area of public contention. The provision of khul‘ was seen by some as symbolic of the old regime and its deviation from the principles of shariʿa. While there were instances of judicial activism in the analysed material,⁹⁶ it cannot be denied that the templates played a role in assuring a degree of stability in Muslim personal status law during a period characterised by social and political upheaval, in this case by providing personal status law with a certain religious legitimacy.