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Female Inheritance and Plight of Widows

By: Sherif Muhammad Abdel Azeem
The three religions have remarkable differences in their attitudes towards divorce. Christianity abhors divorce altogether. The New Testament unequivocally advocates the indissolubility of marriage. It is attributed to Jesus to have said,
“But I tell you that anyone who divorces his wife, except for marital unfaithfulness, causes her to become adulteress, and anyone who marries the divorced woman commits adultery.”(Matthew 5:32).
This uncompromising ideal is, without a doubt, unrealistic. It assumes a state of moral perfection that human societies have never achieved. When a couple realizes that their married life is beyond repair, a ban on divorce will not do them any good. Forcing ill-mated couples to remain together against their wills is neither effective nor reasonable. No wonder the whole Christian world has been obliged to sanction divorce.
Judaism, on the other hand, allows divorce even without any cause. The Old Testament gives the husband the right to divorce his wife even if he just dislikes her:
“If a man marries a woman who becomes displeasing to him because he finds something indecent about her, and he writes her a certificate of divorce, gives it to her and sends her from his house, and if after she leaves his house she becomes the wife of another man, and her second husband dislikes her and writes her a certificate of divorce, gives it to her and sends her from his house, or if he dies, then her first husband, who divorced her, is not allowed to marry her again after she has been defiled.”(Deut. 24:1-4)
The above verses have caused considerable debate among Jewish scholars because of their disagreement over the interpretation of the words “displeasing”, “indecency”, and “dislikes” mentioned in the verses. The Talmud records their different opinions:
“The school of Shammai held that a man should not divorce his wife unless he has found her guilty of some sexual misconduct, while the school of Hillel say he may divorce her even if she has merely spoiled a dish for him. Rabbi Akiba says he may divorce her even if he simply finds another woman more beautiful than she.”(Gittin 90 a-b)
The New Testament follows the Shammaites opinion while Jewish law has followed the opinion of the Hillelites and R. Akiba[33].
Since the Hillelites view prevailed, it became the unbroken tradition of Jewish law to give the husband freedom to divorce his wife without any cause at all. The Old Testament not only gives the husband the right to divorce his “displeasing” wife, it considers divorcing a “bad wife” an obligation:
“A bad wife brings humiliation, downcast looks, and a wounded heart. Slack of hand and weak of knee is the man whose wife fails to make him happy. Woman is the origin of sin, and it is through her that we all die. Do not leave a leaky cistern to drip or allow a bad wife to say what she likes. If she does not accept your control, divorce her and send her away.”(Ecclesiasticus 25:25)
The Talmud has recorded several specific actions by wives which obliged their husbands to divorce them:
“If she ate in the street, if she drank greedily in the street, if she suckled in the street, in every case Rabbi Meir says that she must leave her husband”(Git. 89a)
The Talmud has also made it mandatory to divorce a barren wife (who bore no children in a period of ten years):
“Our Rabbis taught: If a man took a wife and lived with her for ten years and she bore no child, he shall divorce her” (Yeb. 64a)
Wives, on the other hand, cannot initiate divorce under Jewish law. A Jewish wife, however, could claim the right to a divorce before a Jewish court provided that a strong reason exists. Very few grounds are provided for the wife to make a claim for a divorce. These grounds include: A husband with physical defects or skin disease, a husband not fulfilling his conjugal responsibilities, etc. The Court might support the wife’s claim to a divorce but it cannot dissolve the marriage.
Only the husband can dissolve the marriage by giving his wife a bill of divorce. The Court could scourge, fine, imprison, and excommunicate him to force him to deliver the necessary bill of divorce to his wife. However, if the husband is stubborn enough, he can refuse to grant his wife a divorce and keep her tied to him indefinitely. Worse still, he can desert her without granting her a divorce and leave her unmarried and undivorced. He can marry another woman or even live with any single woman out of wedlock and have children from her (these children are considered legitimate under Jewish law).
The deserted wife, on the other hand, cannot marry any other man since she is still legally married and she cannot live with any other man because she will be considered an adulteress and her children from this union will be illegitimate for ten generations. A woman in such a position is called an agunah (chained woman)[34].
In the United States today there are approximately 1000 to 1500 Jewish women who are agunot (plural for agunah), while in Israel their number might be as high as 16000. Husbands may extort thousands of dollars from their trapped wives in exchange for a Jewish divorce[35].
Islam occupies the middle ground between Christianity and Judaism with respect to divorce. Marriage in Islam is a sanctified bond that should not be broken except for compelling reasons. Couples are instructed to pursue all possible remedies whenever their marriages are in danger. Divorce is not to be resorted to except when there is no other way out. In a nutshell, Islam recognizes divorce, yet it discourages it by all means.
Let us focus on the recognition side first. Islam does recognize the right of both partners to end their matrimonial relationship. Islam gives the husband the right for Talaq (divorce). Moreover, Islam, unlike Judaism, grants the wife the right to dissolve the marriage through what is known as Khula’[36].
If the husband dissolves the marriage by divorcing his wife, he cannot retrieve any of the marriage gifts he has given her. The Qur’an explicitly prohibits the divorcing husbands from taking back their marriage gifts no matter how expensive or valuable these gifts might be:
“But if you decide to take one wife in place of another, even if you had given the latter a whole treasure for dower, take not the least bit of it back; Would you take it by slander and a manifest wrong?”(4:20)
In the case of the wife choosing to end the marriage, she may return the marriage gifts to her husband. Returning the marriage gifts in this case is a fair compensation for the husband who is keen to keep his wife while she chooses to leave him. The Qur’an has instructed Muslim men not to take back any of the gifts they have given to their wives except in the case of the wife choosing to dissolve the marriage:
“It is not lawful for you (Men) to take back any of your gifts except when both parties fear that they would be unable to keep the limits ordained by Allah. There is no blame on either of them if she give something for her freedom. These are the limits ordained by Allah so do not transgress them.”(2:229)
Let us now focus our attention on how Islam discourages divorce. The Prophet of Islam told the believers that:
“Among all the permitted acts, divorce is the most hateful to God”(Abu Dawood)
A Muslim man should not divorce his wife just because he dislikes her. The Qur’an instructs Muslim men to be kind to their wives even in cases of lukewarm emotions or feelings of dislike:
“Live with them (your wives) on a footing of kindness and equity. If you dislike them it may be that you dislike something in which Allah has placed a great deal of good.”(4:19)
The Prophet has also emphasized that the best Muslims are those who are best to their wives:
“The believers who show the most perfect faith are those who have the best character and the best of you are those who are best to their wives.”(Tirmidhi)
However, Islam is a practical religion and it does recognize that there are circumstances in which a marriage comes to the verge of collapsing. In such cases, a mere advice of kindness or self restraint is no viable solution. So, what to do in order to save a marriage in these cases?
The Qur’an offers some practical advice for the spouse (husband or wife) whose partner (wife or husband) is the wrongdoer. For the husband whose wife’s ill-conduct is threatening the marriage, the Qur’an gives four types of advice as detailed in the following verses:
“As to those women on whose part you fear disloyalty and ill-conduct,
(1) Admonish them,
(2) refuse to share their beds,
(3) beat them; but if they return to obedience seek not against them means of annoyance: For Allah is Most High, Great.
(4) If you fear a break between them, appoint two arbiters, one from his family and the other from hers; If they wish for peace, Allah will cause their reconciliation.” (4:34-35)
The first three are to be tried first. If they fail, then the help of the families concerned should be sought. It has to be noted, in the light of the above verses, that beating the rebellious wife is a temporary measure that is resorted to as third in line in cases of extreme necessity in hopes that it might remedy the wrongdoing of the wife[37].
If it does, the husband is not allowed by any means to continue any annoyance to the wife as explicitly mentioned in the verse. If it does not, the husband is still not allowed to use this measure any longer and the final avenue of the family-assisted reconciliation has to be explored.
Prophet Muhammad (S) has instructed Muslim husbands that they should not have recourse to these measures except in extreme cases such as open lewdness committed by the wife.
It has to be noted that the Talmud sanctions wife beating as chastisement for the purpose of discipline[38].
The husband is not restricted to the extreme cases such as those of open lewdness. He is allowed to beat his wife even if she just refuses to do her house work. Moreover, he is not limited only to the use of light punishment. He is permitted to break his wife’s stubbornness by the lash or by starving her[39].
For the wife whose husband’s ill-conduct is the cause for the marriage’s near collapse, the Qur’an offers the following advice:
“If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best.”(4:128)
[33] Epstein, op. cit., p. 196
[34] Swidler, op. cit., pp. 162-163.
[35] The Toronto Star, Apr. 8, 1995.
[36] Sabiq, op. cit., pp. 318-329. See also Muhammad al Ghazali, Qadaya al Mar’aa bin al Taqaleed al Rakida wal Wafida (Cairo: Dar al Shorooq, 4th edition, 1992) pp. 178-180.
[37] There is a strict limit to this. Refer to books of jurisprudence for further details.
[38] Epstein, op. cit., p. 219.
[39] Ibid, pp 156-157.

The Old Testament in several places commands kind and considerate treatment of the parents and condemns those who dishonor them. For example,
“If anyone curses his father or mother, he must be put to death.”(Lev. 20:9)
“A wise man brings joy to his father but a foolish man despises his mother.”(Proverbs 15:20).
Although honoring the father alone is mentioned in some places, e.g.
“A wise man heeds his father’s instruction.”(Proverbs 13:1),
The mother alone is never mentioned. Moreover, there is no special emphasis on treating the mother kindly as a sign of appreciation of her great suffering in childbearing and suckling. Besides, mothers do not inherit at all from their children while fathers do[40].
It is difficult to speak of the New Testament as a scripture that calls for honoring the mother. On the contrary, one gets the impression that the New Testament considers kind treatment of mothers as an impediment on the way to God. According to the New Testament, one cannot become a good Christian worthy of becoming a disciple of Christ unless he hates his mother. It is attributed to Jesus to have said:
“If anyone comes to me and does not hate his father and mother, his wife and children, his brothers and sisters--yes, even his own life--he can not be my disciple.”(Luke 14:26)
Furthermore, the New Testament depicts a picture of Jesus as indifferent to, or even disrespectful of, his own mother. For example, when she had come looking for him while he was preaching to a crowd, he did not care to go out to see her:
“Then Jesus’ mother and brothers arrived. Standing outside, they sent someone to call him. A crowd was sitting around him and they told him, ‘Your mother and brothers are outside looking for you.’ ‘Who are my mother and my brothers?’ he asked. Then he looked at those seated in a circle around him and said,’ Here are my mother and my brothers! Whoever does God’s will is my brother and sister and mother.’ “(Mark 3:31-35)
One might argue that Jesus was trying to teach his audience an important lesson that religious ties are no less important than family ties. However, he could have taught his listeners the same lesson without showing such absolute indifference to his mother. The same disrespectful attitude is depicted when he refused to endorse a statement made by a member of his audience blessing his mother’s role in giving birth to him and nursing him:
“As Jesus was saying these things, a woman in the crowd called out, ‘Blessed is the mother who gave you birth and nursed you.’ He replied, ‘Blessed rather are those who hear the word of God and obey it.’ “(Luke 11:27-28)
If a mother with the stature of the virgin Mary had been treated with such discourtesy, as depicted in the New Testament, by a son of the stature of Jesus Christ, then how should an average Christian mother be treated by her average Christian sons?
In Islam, the honor, respect, and esteem attached to motherhood is unparalleled. The Qur’an places the importance of kindness to parents as second only to worshipping God Almighty:
“Your Lord has decreed that you worship none but Him, And that you be kind to parents. Whether one or both of them attain old age in your life, Say not to them a word of contempt, nor repel them, But address them in terms of honor. And out of kindness, Lower to them the wing of humility, and say: ‘My Lord! bestow on them Your Mercy as they Cherished me in childhood.’” (17:23-24)
The Qur’an in several other places puts special emphasis on the mother’s great role in giving birth and nursing:
“And We have enjoined on man to be good to his parents: In travail upon travail did his mother bear him and in two years was his weaning. Show gratitude to Me and to your parents.”(31:14)
The very special place of mothers in Islam has been eloquently described by Prophet Muhammad (S):
“A man asked the Prophet: ‘Whom should I honor most?’ The Prophet replied: ‘Your mother’. ‘And who comes next?’ asked the man. The Prophet replied: ‘Your mother’. ‘And who comes next?’ asked the man. The Prophet replied: ‘Your mother!’. ‘And who comes next?’ asked the man. The Prophet replied: ‘Your father’” (Bukhari and Muslim).
Among the few precepts of Islam which Muslims still faithfully observe to the present day is the considerate treatment of mothers. The honor that Muslim mothers receive from their sons and daughters is exemplary. The intensely warm relations between Muslim mothers and their children and the deep respect with which Muslim men approach their mothers usually amaze Westerners[41].
[40] Epstein, op. cit., p. 122
[41] Armstrong, op. cit., p. 8.

Female Inheritance
One of the most important differences between the Qur’an and the Bible is their attitude towards female inheritance of the property of a deceased relative. The Biblical attitude has been succinctly described by Rabbi Epstein:
“The continuous and unbroken tradition since the Biblical days gives the female members of the household, wife and daughters, no right of succession to the family estate. In the more primitive scheme of succession, the female members of the family were considered part of the estate and as remote from the legal personality of an heir as the slave. Whereas by Mosaic enactment the daughters were admitted to succession in the event of no male issue remained, the wife was not recognized as heir even in such conditions[42].”
Why were the female members of the family considered part of the family estate? Rabbi Epstein has the answer: “They are owned --before marriage, by the father; after marriage, by the husband.[43]”
The Biblical rules of inheritance are outlined in Numbers 27:1-11.
A wife is given no share in her husband’s estate, while he is her first heir, even before her sons. A daughter can inherit only if no male heirs exist. A mother is not an heir at all while the father is. Widows and daughters, in case male children remained, were at the mercy of the male heirs for provision. That is why widows and orphan girls were among the most destitute members of the Jewish society.
Christianity has followed suit for a long time. Both the ecclesiastical and civil laws of Christendom barred daughters from sharing with their brothers their patrimony. Besides, wives were deprived of any inheritance rights. These iniquitous laws survived till late in the last century.[44]
Among the pagan Arabs before Islam, inheritance rights were confined exclusively to the male relatives. The Qur’an abolished all these unjust customs and gave all the female relatives inheritance shares:
“From what is left by parents and those nearest related there is a share for men and a share for women, whether the property be small or large --a determinate share.”(4:7)
Muslim mothers, wives, daughters, and sisters had received inheritance rights thirteen hundred years before Europe recognized that these rights even existed. The division of inheritance is a vast subject with an enormous amount of details (4:7,11,12,176).
The general rule is that the female share is half the male’s except the cases in which the mother receives equal share to that of the father. This general rule if taken in isolation from other legislations concerning men and women may seem unfair. In order to understand the rationale behind this rule, one must take into account the fact that the financial obligations of men in Islam far exceed those of women (see the “Wife’s property” section).
A bridegroom must provide his bride with a marriage gift. This gift becomes her exclusive property and remains so even if she is later divorced. The bride is under no obligation to present any gifts to her groom. Moreover, the Muslim husband is charged with the maintenance of his wife and children. The wife, on the other hand, is not obliged to help him in this regard. Her property and earnings are for her use alone except what she may voluntarily offer her husband. Besides, one has to realize that Islam vehemently advocates family life. It strongly encourages youth to get married, discourages divorce, and does not regard celibacy as a virtue.
Therefore, in a truly Islamic society, family life is the norm and single life is the rare exception. That is, almost all marriage-aged women and men are married in an Islamic society. In light of these facts, one would appreciate that Muslim men, in general, have greater financial burdens than Muslim women and thus inheritance rules are meant to offset this imbalance so that the society lives free of all gender or class wars. After a simple comparison between the financial rights and duties of Muslim women, one British Muslim woman has concluded that Islam has treated women not only fairly but generously[45].
[42] Epstein, op. cit., p. 175.
[43] Ibid., p. 121.
[44] Gage, op. cit., p. 142.
[45] B. Aisha Lemu and Fatima Heeren, Woman in Islam (London: Islamic Foundation, 1978) p. 23.

Plight of Widows
Because of the fact that the Old Testament recognized no inheritance rights to them, widows were among the most vulnerable of the Jewish population. The male relatives who inherited all of a woman’s deceased husband’s estate were to provide for her from that estate. However, widows had no way to ensure this provision was carried out, and lived on the mercy of others. Therefore, widows were among the lowest classes in ancient Israel and widowhood was considered a symbol of great degradation (Isaiah 54:4).
But the plight of a widow in the Biblical tradition extended even beyond her exclusion from her husband’s property. According to Genesis 38, a childless widow must marry her husband’s brother, even if he is already married, so that he can produce offspring for his dead brother, thus ensuring his brother’s name will not die out.
“Then Judah said to Onan, ‘Lie with your brother’s wife and fulfill your duty to her as a brother-in-law to produce offspring for your brother.’”(Genesis 38:8)
The widow’s consent to this marriage is not required. The widow is treated as part of her deceased husband’s property whose main function is to ensure her husband’s posterity. This Biblical law is still practiced in today’s Israel[46].
A childless widow in Israel is bequeathed to her husband’s brother. If the brother is too young to marry, she has to wait until he comes of age. Should the deceased husband’s brother refuse to marry her, she is set free and can then marry any man of her choice. It is not an uncommon phenomenon in Israel that widows are subjected to blackmail by their brothers-in-law in order to gain their freedom.
The pagan Arabs before Islam had similar practices. A widow was considered a part of her husband’s property to be inherited by his male heirs and she was, usually, given in marriage to the deceased man’s eldest son from another wife. The Qur’an scathingly attacked and abolished this degrading custom:
“And marry not women whom your fathers married--Except what is past-- it was shameful, odious, and abominable custom indeed.”(4:22)
Widows and divorced women were so looked down upon in the Biblical tradition that the high priest could not marry a widow, a divorced woman, or a prostitute:
“The woman he (the high priest) marries must be a virgin. He must not marry a widow, a divorced woman, or a woman defiled by prostitution, but only a virgin from his own people, so he will not defile his offspring among his people.”(Lev. 21:13-15)
In Israel today, a descendant of the Cohen caste (the high priests of the days of the Temple) cannot marry a divorcee, a widow, or a prostitute[47].
In the Jewish legislation, a woman who has been widowed three times with all the three husbands dying of natural causes is considered ‘fatal’ and forbidden to marry again[48].
The Qur’an, on the other hand, recognizes neither castes nor fatal persons. Widows and divorcees have the freedom to marry whomever they choose. There is no stigma attached to divorce or widowhood in the Qur’an:
“When you divorce women and they fulfil their terms [three menstruation periods] either take them back on equitable terms or set them free on equitable terms; But do not take them back to injure them or to take undue advantage, If anyone does that, he wrongs his own soul. Do not treat Allah’s signs as a jest.”(2:231)
“If any of you die and leave widows behind, they shall wait four months and ten days. When they have fulfilled their term, there is no blame on you if they dispose of themselves in a just manner.”(2:234)
“Those of you who die and leave widows should bequeath for their widows a year’s maintenance and residence. But if they [the widows] leave (the residence) there is no blame on you for what they justly do with themselves.”(2:240)
[46] Hazleton, op. cit., pp. 45-46.
[47] Ibid., p. 47.
[48] Ibid., p. 49.

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