Interspousal torts in Islamic law: a critical look at what it means for a woman to experience harm in marriage
FAIN: FT-291693-23
Tesneem Alkiek
Rutgers, The State University of New Jersey, Camden (Camden, NJ 08102-1405)
Research and writing one chapter of a book on notions of harm and divorce in medieval Islamic law.
My project explores how traditional Muslim jurists defined harm (?arar) in marriage—particularly, the type of harm that constitutes a tort and is grounds for judicial divorce. I juxtapose two major schools of law, the Malikis and ?anafis, through a close reading of texts composed by authoritative voices in each school, including Mu?ammad b. Rushd, Khalil b. Is?aq, ?Ala? al-Din al-Kasani, and Mu?ammad al-Sarakhsi. I argue that contrary to current tropes in academic literature, jurists did not limit ?arar to physical hitting, but thoroughly discussed both material and immaterial forms of injury like emotional and sexual harm. I contend, moreover, that Maliki jurists broadly define ?arar in light of normative standards and, in doing so, offer a versatile concept that can be molded in relation to a society’s customs.
Associated Products
Spousal Harm in the Mālikī Law School: Evidence and Procedure (Article)Title: Spousal Harm in the Mālikī Law School: Evidence and Procedure
Author: Tesneem Alkiek
Abstract: The Mālikī law school grants a wife the right to judicial divorce if her husband harms her. Mālikīs distinguish between harm that is legally actionable and harm that is non-actionable. A husband causes actionable harm (ḍarar) when he violates his wife’s rights, which Mālikī scholars define broadly. By establishing ḍarar as grounds for divorce, Mālikīs demonstrate their willingness to limit a husband’s marital authority and increase opportunities for a woman to leave her marriage. In this study, I highlight the types of evidence and procedures Mālikī jurists use to establish ḍarar and facilitate judicial divorce by examining four cases that deal with emotional, sexual, and physical harm. Through a substantive approach to law, Mālikīs offer several ways for a woman to collect evidence, prove her claim of harm, and receive a divorce.
Year: 2023
Primary URL:
https://doi.org/10.1163/15685195-bja10049Access Model: Subscription
Format: Journal
Periodical Title: Islamic Law and Society
Publisher: Brill