The Evidence of the Maliki, the Shafii, and the Hanbeli 30.2 The Evidence of the Maliki, the Shafii, and the Hanbeli These three sects interpreted the verses and the hadiths as instructed by the Arabic tradition. In the Arab society, the man asked the father or the custodian of a young woman if he wished to marry her. The dowry was given to them and later the marital agreement was made. The man was one side of the agreement, but the woman didn’t hold such a right. Her custodian overtook her part. They maintained that this action of theirs was supported by this verse: “(When you divorce women) they reach their prescribed time do not prevent the womem from marrying their husbands when they agree among themselves in a lawful manner (in compliance with the Maruf)” They state that the word (__= prevention, obstacle) used in the phrase (__________=el-imtina’ min tezviciha) has such a meaning ‘avoiding to wed the women’. And according to their reasoning this points to the fact that the wedding of the woman as a responsibility has been given to her custodians. If it hadn’t been for the preliminary part of the verse, they wouldn’t have been able to reach to such an explanation, because the verse itself is: “…do not prevent the women from marrying their husbands”. Preventing is what a certain person can do for a certain issue. From a lexical perspective, the subject of the active verb ‘to marry’ is the woman, from can be easily understood that the woman is one of the sides in the marital agreement. On the other hand, the prevention of something is completely different from the avoidance of something. The translation of the prevention as avoidance is nothing less than changing the verse’s significance. At the same time they maintain that in the section (__________= en yenkihne ezvacchunne) ‘marrying their husbands’ the usage of the word ‘woman’ as an active subject of the sentence is because, although she is no side in the marital agreement, she is the subject matter of this agreement. Then, according to this logic, if the woman cannot be side in her marital agreement, she can’t even be representative or custodian in the marriage of any single person. The Glorified Allah made the woman an active person in her marriage, while the Arabic tradition made of her a mere subject matter in such an important decision for her life. As the tradition’ directives were essential in the Arabic tradition, Allah’s direct statement and command was considered as a metaphor; multiplying so the number of mistakes. Those, who considered the ‘active person’ a ‘subject matter’, considered the woman’s dowry as her price and founded a whole system – from the marital agreement to divorce-over this notion. None of these sects accepted the ‘iftida’- the woman’s right to divorce- and, in fact, instead of this right they developed another system that was named ‘muhalaa’. ‘Muhalaa’ is a system that requires the woman to pay her husband a certain amount of money or goods if he wants him to divorce her. Shirbini from the Shafi sect states: “The man, earns the right to profit from the woman in return to the money –dowry- he gives, so he can renounce from this obtained right only in return to some goods. This is why the ‘muhalaa’ is lawful. It is just like a buying and selling issue. The marriage is the purchase process, while the ‘muhalaa’ is the vending process.” According to Ibn Teymiyye the evidence that ‘muhalaa’ is not ‘talak’ –divorce asked and undertaken by the husband is thus: “Muhalaa is the escaping of the woman from her husband. It resembles the slave’s evasion from slavery. It is not counted as one of the three divorces right given to the husband…Just like in the slavery issue, where all the four sects’ imams and leaders agree that the required amount can be paid by another person, in this case too, the process can be undertaken and accomplished by another. An unknown can pay the amount required by the slave owner and free the slave. For this reason, if a person’s goal is to free the woman from her husband’s domination, he must rely on this condition while making the payment…Because, the ‘muhalaa’ payment is done in order to save the woman from being a slave and to demolish the husband’s domination over her. Obviously, it is not done in order to give the woman the control over herself.” This school didn’t give woman as much value as to a slave. The slave obtains control over himself when freed, while, according to them, the woman if saved from her husband’s domination, she enters her custodian’s rule. As the woman is not a good that can be sold and bought, considering her as the ‘subject matter’ of the marital agreement is not acceptable. The Glorified Allah commands: ____________________ Within the Maruf range, those women’s rights over the men are alike their (the men) rights over them (the women).” (Baqara/ The Cow 2/228) The verse doesn’t regard the woman as the man’s slave, because there is no point in viewing the slave’s and the slave-owner’s rights as compatible. The Glorified Allah commands: “Give women their dowries as a non-recompensed gift (with all your heart).” The word translated as ‘dowries’ is ‘sadakat’, the plural of ‘saduka’, which derives from the root ‘sidk’. The meaning of ‘sidk’ is being loyal and trustworthy. Men state that they esteem the women they marry; the donation of a small part of their wealth is the proof of this appreciation. Another word mentioned in this verse is the word ‘nihle’ translated as ‘with all your heart’. The original meaning of ‘nihle’ is a non-recompensed gift. So, according to all these facts the dowry is not the price of anything, at all. The biased analysis of the verses has led to an unavoidable excluding of some hadiths; thi hadith has not been regarded at all: Once a maid came to Aysha and told her: “My father wedded me to the son of his brother, so that he can improve his position. I don’t like this.” Aysha asked the young woman to wait till the Messenger of Allah was back. When the Messenger of Allah came, she explained him everything. He sent a man to get this woman’s father and, later, gave her the privilege to decide for this issue. It was then, when the young said: “Messenger of Allah! In fact, I had already given my consent for what my father did. I wanted to know if women had any right at all in this issue.” While the hadith three of these sects highly regard makes word of a woman as the active person of her marital agreement. “Whoever the woman, who marries without the permission of her custodian, her marriage is batil, her marriage is batil, and her marriage is batil.” So it is impossible to accept these views, too: According to the Maliki sect, the father can wed his virgin daughter, even by force if he wishes to. The husband can be blind, ugly or even able to pay only a quarter dinar of gold, when the daughter’s dowry value is a whole kantar of gold. This decision is untouchable even if the daughter is older than 60 years old and even if she had been previously prevented from marriage by her custodians. The facts that the man’s genitals are t cut and he is not impotent are sufficient for the woman to respect her father’s decision. According to the original view, the father cannot force her daughter in such a case. The woman is not forced to marry the man her father chose if this man is insane, alaca hastaligi, cuzamli, innin, eunuch, or impotent. Also according to the Shafi sect the right to wed the virgin daughter is hold by her father. Talking to the daughters and asking for their opinion is good but not indispensable. It’s beneficial to ask for the mother’s opinion as well.