Tunisia and the Liberation of Muslim Women
By Dr Abdullah bin Hamid Ali
Tunisia is hailed by western feminist organizations as the most “progressive” Arab country in the Muslim world. Government sponsorship of abortions, the criminalization of polygyny (a crime punishable with one year’s imprisonment and/or a fine of 240,000 francs), a woman’s equal right to file for divorce, and its exemption of wives from the religious obligation to obey their husbands play no marginal role in solidifying Tunisia’s favorable reputation with European nations. Recently, Tunisian legislators added to their list of progressive policies the legality of Muslim women to marry non-Muslim men, in contravention of Islamic orthodoxy. Naturally, there has been both celebration and outrage at this latest effort to further bring Tunisia—and other Muslim majority nations—into conformity with the demands of widely perceived standards of gender equality. Even if we do accept that there is nothing socially hazardous about Muslim women being allowed to marry non-Muslim men, assuredly, for a people who profess to believe in Islam, there is a serious risk that one is gambling with one’s soul or minimally embracing a kind of duplicity.
Apparently, Tunisia’s National Dialogue Quartet (I’tilaf Jam’iyat Tunisiyah) found a loophole in the country’s personal status code of 1956 to score this success. The laws that should prohibit Muslim women from marrying non-Muslim men does not explicitly include in its lists of barriers to marriage “non-Muslim status” (ikhtilaf al-din; kufr). It was, in fact, merely the result of a 1973 decree issued by the ministry of justice stipulating that any non-Muslim man seeking marriage to a Tunisian—presumptively Muslim—woman prove his Muslim status in the presence of one of the republic’s muftis. The Quartet motioned to have this justice ministry decree nullified in order to allow for the freedom of Tunisian women to marry whomever they please as a way of promoting equality with men who are not legally barred by this decree from marrying “non-Muslim” women. This is so, even though the absence of the “non-Muslim status” barrier to marriage from the personal status code could also be interpreted to mean that Tunisian men are similarly not permitted to marry outside the Islamic faith. This latter interpretation was preferred by some, but Tunisian legislators decided the former interpretation was sufficiently substantive to override the 1973 decree.
There are many reasons to marvel at this decision, the least of which is not that legislators in their struggle to balance religious with areligious concerns have marginalized the role that the Qur’an and the Islamic juristic legacy is supposed to play in the lives of Tunisian citizens per its constitution. This has produced a seemingly irreconcilable tension, which makes one skeptical about the potential success of adapting scriptural norms to the modern nation state model. How does one adjudicate between the revealed law (Shariah) and law codes drafted by human legislators when they clash? How do Muslim governments avoid granting these laws the same transcendent status of scripture? And how do they avoid misconstruing the public offices, government institutions, and the processes meant to legitimate rule as divinely determined instruments of justice?
The tensions are many with one of the most important being the question of if Islam is a cultural or religious identity. Tunisia’s constitution seems to have settled this question by declaring in Article 1 about the country that “Islam is its religion” (al-islam dinuha). Consequently, children born to Tunisian Muslims, who make up an estimated 98% of the population, are designated Muslim from birth. That some in Tunisia object to this default designation in order to validate marriage to non-Muslim men begs the question, ‘Do Muslims really want Islam in their lives?’
There are, naturally, pressures to mirror European nations and to live up to the image of being the “most progressive.” High unemployment among men and limited opportunities for socio-economic advancement also lead many Tunisian women to desire immigration. According to the National Institute of Statistics (al-ma’had al-watani li al-ihsa’), 30,000 Tunisian women immigrated outside the country in 2004 due to marriage. According to another study, up to 71% of Tunisian women dream of living in another country as a way of achieving happiness. That such conditions exist and drive the marriage decisions of so many Tunisian women, one can see how such a law permitting them to marry foreigners could be so appealing. It’s a reality which solicits the question, ‘Should government play a definitive role in the marriage choices of its citizens? Or should it merely act as arbiter in contractual disputes, marriage being an example of such a contract?
Does Islam Actually Prohibit Muslim Women from Marrying Non-Muslim Men?
Muslim scholars since the death of the Prophet Muhammad have dealt with the impermissibility of a Muslim woman “initiating” a marriage with a non-Muslim man as a self-evident teaching of Islam. But, while there is consensus among Muslim jurists that such marriages lack divine sanction, the Prophet’s companions did in fact differ about the marital status of women who convert to Islam prior to their husbands or when their husbands refuse to convert with them.
The companion ‘Ali b. Abi Talib reportedly held that the woman had the right to remain with her non-Muslim husband as long as they remain in Muslim lands. The second caliph ‘Umar b. al-Khattab, however, was of the view that if her husband refused to accept Islam, they are to be separated. According to Ibn ‘Abbas, “If a Christian woman accepts Islam prior to her husband, she has greater control over herself”, implying that she is automatically divorced from her husband by her mere acceptance of Islam.
Some jurists hold that the marriage is voided due to her taking flight to Muslim lands, while others say it is due to her mere acceptance of Islam. The latter view is strengthened by the report about the Prophet’s daughter, Zaynab, who was separated from her non-Muslim husband, Abu al-‘As b. al-Rabi’, for six years, and after being reunited with him was reportedly remarried. This would indicate that merely preceding her husband to Islam invalidated the marriage. Otherwise, there would be no need to remarry. However, this report is undermined by another that states that they were reunited without a new ceremony.  If true, this would serve as strong evidence for a converted woman “remaining”, rather than “initiating a marriage,” with a non-Muslim man. The Hanafi jurist, Al-Jassas, claims that jurists agreed that the woman is not automatically divorced from her husband if they are living in the same territory (dar wahidah). As for the women born into Islam, this ruling does not apply.
With regard to the prohibited degrees of marriage, other than relatives—through blood, wet nursing, and extended matrimonial relations, the Quranic references typically cited are 2:21, 5:5, and 60:10. Chapter 2 Verse 21 explicitly forbids Muslims, men and women, from marrying idolaters, reasoning that “Those invite to the Fire. But God invites to Paradise and Forgiveness from Himself.” Some exegetes, however, consider “idolaters” (mushrikin, mushrikat) in this verse to be a general reference to “non-Muslims” thereby excluding the possibility that Muslims, male and female, be allowed to marry Christians and Jews. Chapter 5 Verse 5, however, makes an exception for Muslim men to marry “...the chaste women from the People of the Book.”
Qur’an Chapter 60 Verse 10 turns out to be the most critical of all references prohibiting Muslim women from marrying non-Muslim men. It reads,
O Prophet! When believing women come to you emigrating, put them to test. God is most aware of their faith. So, if you discover them to be believing women, do not return them to the unbelievers (kuffar). They (women) are not lawful for them (men). Nor are they (men) lawful for them (women). And give them (men) whatever they have spent.
The background of this verse is the Treaty of Hudaybiyah of year 6 AH wherein the Prophet agreed to send back any “Muslims” (written in the masculine plural) fleeing from Mecca to Medina seeking to accept Islam. Since the treaty did not specifically say anything about women nor did its signatories apparently envisage the possibility that any women might emigrate, the Qur’an authorized for the Prophet to give asylum to female refugee converts while awarding the husbands from whom they absconded financial settlements that covered monies spent on their dowers prior to marriage.
The verse, then, permits for Muslim men to marry these converted women saying, “And there is no offense in you marrying them once you have given them their marriage gifts.” Then, as if to offer a lesson in equality, the chapter forbids Muslim men whose wives have fled to Mecca to free them of the marriage bond. It reads, “And do not cling to the matrimonial bonds of disbelieving women (‘isam al-kawafir). And ask for what you have spent, and let them ask for what they have spent.” In other words, just as you repay the idolaters settlements for the loss of their wives, you should ask that they reciprocate by repaying the costs you incurred from the dowers you paid to your ex-wives.
What makes this verse so crucial for establishing the lasting prohibition is its wording. Instead of using the more specific ‘mushrik’ (idolater), ‘yahudi’ (Jew), or ‘nasrani’ (Christian), it employs the all-inclusive ‘kuffar/kawafir’ or ‘unbelievers.’ This would decisively limit the marriage options of both Muslim women and men if taken generally. One might argue, of course, that since this verse had an occasion of revelation/context, it cannot be used as a universally applicable ruling. The problems with this argument, however, are twofold. Firstly, the supermajority of legal theorists adopted a principle stating that, “Consideration is given to the generality of the statement. Not the specificity of the cause” (al-‘ibrah bi ‘umum al-lafz la bi khusus al-sabab). Secondly, gender equality activists and secular minded thinkers regularly advance the “generality” and “absoluteness” of Qur’anic verses and prophetic traditions to support their reinterpretations and revisionist opinions on the Islamic tradition. It would be hypocritical to then negate this opinion by holding up the original context.
One might also consider the hadith of Jabir b. ‘Abd Allah that Imam Al-Tabari relates in his Jami’ al-Bayan wherein the Prophet Muhammad is reported to have said, “We marry the women of the People of the Book, but they do not marry our women.”  The hadith has been graded weak by traditionists, including Al-Tabari himself. But, moral revisionists in the Muslim community never really seem to be bothered by the use of weak hadiths when they fit their fancies. Some, furthermore, categorically reject the authority of hadith not realizing that it leaves them completely defenseless; Without hadiths one is incapable of making a context-based argument suggesting that “kuffar” in the aforementioned verse means merely “idolater” but not “Christian” or “Jew.”
Dismissing the authority of this hadith due to its weakness (not spuriousness) still leaves one to contend with the fact that while the Prophet and some of his companions married Jewish and Christian women, there are no reports of any women in their times marrying Jewish or Christian men. ‘Umar b. al-Khattab said, “The Muslim marries the Christian woman, but the Christian does not marry the Muslim woman.” Similarly, the Successor, Qatadah b. Da’amah, said, “God made lawful for us two chaste women: a believing chaste woman and a chaste woman from the People of the Book. Our women, [however], are unlawful for them. And their women are lawful for us.” This shows that Muslims have lived since the earliest of times with the understanding that Muslim women may only marry Muslim men.
Marriage is a Contractual Agreement
One thing that gender equality advocates seem to overlook often is that marriage is a contractual agreement. And, like any contract or treaty, there are compromises which sometimes appear to give an undue advantage to one party over another. The Islamic obligation of wifely obedience to her husband and disparities in shares of inheritance between spouses are typically underscored as “unjust” rules that privilege men and place women at a disadvantage. This is also said of Islamic orthodoxy’s granting of men the independent prerogative to divorce their wives while denying a similar right to women. Tunisian legislators, however, have decided that equality and justice demand that women be allowed to initiate divorce proceedings as well as exempting them from the obligation of obedience in contravention of Islam’s historical teachings. They have, now, added the right to marry outside of their religion. It is only natural that the Qur’anic laws of inheritance are the next target of gender equality advocates.
According to Article 21 of the Tunisian constitution, “Citizens, male and female, are equal in rights and obligations.” If that is true, why does its personal status code obligate men to pay a dower for marriage but not women to do the same (Article 12)? And why do women still receive half of the dower if divorce happens prior to consummation (Article 33)? Why are men obligated to pay maintenance (Article 38) and nursing costs (Article 48) but women are not (Article 38)? Why are men required to provide for their wives and children, while a wife is only obligated if she has wealth (Article 23)? Why is a husband obligated to pay alimony to a divorcee if she is harmed financially by the divorce until she remarries or finds another sufficient source of income (Article 32)? And why are these same men threatened with imprisonment and fines for refusal to make payment on time (Article 53)? Why does the law not also obligate a woman to provide for her ex-husband if the divorce places him in a financial bind? Why is a father exclusively required to provide a home for the caretaker of his children in case of divorce when the caretaker has no residence (Article 56)? Another important question about the equal treatment of Tunisian citizens is, why is it inadmissible for a non-Muslim mother to have custody of her child after 5 years of age, while Muslim fathers can?
These questions are posed without presuming all of the aforementioned laws to be unjust. But, it is clear that Tunisians cannot live up to being both a “Muslim” country and one that treats every citizen “equally” under the law. Perhaps, the most reasonable compromise is equitable, rather than equal, treatment. Equitable treatment, at least, maintains the Qur’anic teaching that “The male is unlike the female” (Q 3:36). Another alternative would be for Tunisia and other countries to adopt a secular identity wherein government has minimal interference in the marriage choices of its citizens, merely adjudicating each relationship on the merits of the compromises underscored in their marriage agreements. If people agree to be judged by Islamic laws, they would be bound by their agreement to do so. Otherwise, they should be left to marry as their conscience dictates. This, however, will inevitably open the door to multiple forms of relationships that, perhaps, Tunisian society is not quite ready to embrace. But, it is the natural consequence of calls for complete equality.
Has Progressive Politics Improved Tunisian Society?
While human rights organizations have convinced many Muslims that true justice is found in egalitarian existence, it is important to reflect on just how egalitarianism has or has not improved the lives of Tunisians. Article 23 of the Tunisian Personal Status Code declares that the husband is the “head of the family”, while maintaining silent about any presumed obligation of the wife to obey him. Rather, the law attempts to proffer equally shared authority to the husband and wife, giving them both charge over their children’s upbringing. The absurdity of the designation “head” is underscored when one considers all the financial responsibilities borne by the man even though the constitution claims that all citizens, men and women, share the same rights and obligations. How can a man be the “head” of his family without possessing the authority to command their obedience? This may explain why the divorce rate in Tunisia is higher than in any Arab/Muslim country with approximately half of marriages ending in divorce despite being hailed the Arab world’s “most progressive” nation. This is in addition to the negative social impact that divorce has on children.  Suicide rates are high.  So is drug abuse, alcoholism, and abortions by unwed mothers  (1,146 in 2014). There are also more than two million spinsters in Tunisia.  One has to wonder, then, whether or not there is real cause for celebration.
According to the Tunisian constitution, “The family is the basic nucleus of society. And it is upon the government to protect it.” If this is truly what Tunisian legislators believe, they do not appear to be doing a very good job showing it. That the constitution considers Islam to be the state’s official religion, one would assume that the government would do more to help its citizens value that important part of their identity. Notwithstanding the pressures that originate from forces outside of the country, there are some blatant contradictions found in Tunisia’s desire to live up to both its Islamic ideals and ideals determined by European human rights regimes. Article 20 of the constitution reads, “All accords agreed to and ratified by the representative assembly are higher than the laws but lower than the constitution.” If that is so, would this not mean that Islam should be given priority to any international accords ratified by congress?
The allure of democracy and freedom are seductive. That is not to suggest that they are not values worth cherishing. If anything, choosing one’s faith commitments and the freedom to follow one’s conscience are not only important in our time. They are also important to God according to Islam’s core teachings. God does not accept worship unless it is done sincerely for Him. And, compelling faith and conformity destroy the blessing and credit assigned to good acts. Even if a Muslim accepts Islam’s historical view barring Muslim women from marrying non-Muslim men, one must consider whether or not using governmental intervention to compel conformity with things that outrage the conscience of particular citizens is the best way to preserve their faith in Islam’s moral code. Should a person who resists conforming to Islamic mores and lacks reverence for them be forced to maintain the designation of “Muslim”? If the person has little interest in living in accord with “Islamic” demands, should he/she be treated like others who are committed?
On the obverse, what lessons can be learned from the apparent failure of gender equality legislation to increase the relative happiness of Tunisian citizens? Unemployment, drug and alcohol abuse, suicide, out of wedlock pregnancies and abortions, spinsters, and an epidemic of divorce all signify that for whatever “progress” Tunisia has supposedly made, it appears that the adoption of non-Islamic standards has only deepened the suffering of citizens. Is it possible that Tunisia’s problems are the result of the absence of Islam in the lives of Tunisians, rather than its presence? Could it be that the reason so many women see hope and good fortune outside of Tunisia is actually due to the failure of its governors and legislators to instill pride in its citizens and their identification with the culture, especially the part the constitution declares to be inextricably Islamic?Dr. Abdullah bin Hamid Ali is assistant professor of Islamic law and Prophetic Tradition at Zaytuna College in Berkeley, California (2007-present). He holds a PhD in Cultural and Historical Studies (2016) and an MA in Ethics and Social Theory (2012) from the Graduate Theological Union. He obtained his BA (ijaza ‘ulya) in Islamic Law (Shariah) from the prestigious Al-Qarawiyin University of Fes, Morocco in 2001. He served as full time Islamic chaplain at the State Correctional Institute of Chester, PA from 2002-2007, and is the founding director of the Lamppost Education Initiative (www.lamppostproductions.com).
1. ““زواج التونسيات بغير المسلم يثير جدلا في تونس” Alarab.co.uk. Accessed October 1, 2017. http://www.alarab.co.uk/?id=106066.
2. Perhaps, this is the sort of tension that Dr. Khalid Blankinship was trying to outline in a 2011 post “Is an Islamic State Just Another Form of Muslim Zionism?” He writes in his concluding paragraph,
…I wish the Turkish AKP, the Tunisian al-Nahdah Party, and the youth wing of the Egyptian Muslim Brotherhood well in their stated attempt to re-inject ethics into political systems that had been lacking them, even though I fear that the world of politics, being the ground of compromise rather than sincerity, tends always to corrupt.
Note that this was said long before the emergence of ISIS, the Arab Spring and President Morsi’s ouster. Also, observe how it shows that Muslims have long aspired to incorporate scriptural standards into government. By modeling themselves after western nation states which aspire to treat all citizens equally without consideration of religion and sex, the tension produced by the demand for the supremacy of “Islamic” values which by its very nature privilege one religious perspective over another should not surprise us. This seems to be equally applicable to ISIS style governments, the sort of government envisioned by proponents of political Islam, and even current Muslim governments which have amalgamated Islam with secular codes. Khalid Y. Blankinship, “Is an Islamic State Another Form of Muslim Zionism?” Lamppost Education Initiative. Accessed on October 1, 2017.
3. ““زواج التونسيات بغير المسلم يثير جدلا في تونس” Alarab.co.uk. Accessed October 1, 2017. http://www.alarab.co.uk/?id=106066.
4. Shaykh ‘Abdullah Bin Bayyah lists among those who allowed for a woman to remain married to her non-Muslim husband if he is no threat to her faith: ‘Umar b. al-Khattab, ‘Ali b. Abi Talib, Ibrahim al-Nakha’i, Sha’bi, and Hammad b. Abi Sulayman.
Bin Bayyah, ‘Abd Allah b. al-Shaykh al-Mahfuz, Sina’ah al-Fatwa wa Fiqh al-Aqalliyat. Beirut: Dar al-Minhaj, 2007, p. 357.
“So, this report—despite what is in its chain of narration [of weakness] is adopted due to the unanimous consensus concerning its import—[and] is more applicable than the report of ‘Abd Al-Hamid b. Bahram from Shahr b. Hawshab [prohibiting Muslim men from marrying the women from the People of the Book].”
13. “Children of Divorce.” BBC Arabic: August 2015. Accessed on October 1, 2017. https://www.youtube.com/watch?time_continue=8&v=C6P9ow7dLHI
14. Al Jazeera Staff. “Tunisia Unemployment Protests Spread to Capital: Suicide Attempts Have Been Reported as Protests Spread to Cities Across Tunisia Amid Anger Over Unemployment.” Aljazeera.com: 21 January 2016. Accessed on October 1, 2017. http://www.aljazeera.com/news/2016/01/clashes-spreading-tunisia-unemployment-protests-160121190816218.html.
15. Canada: Immigration and Refugee Board of Canada, “Tunisia: Situation of women who have had a child out of wedlock, including their treatment by family members and society; state protection and available services (2011-November 2014),” 9 December 2014, TUN104988.FE, available at: http://www.refworld.org/docid/549ab8b94.html [accessed 4 October 2017]
16. أكثر من مليوني عانس في تونس, دعوات لإقرار تعدد الزوجات. المغرب العربي Al-Maghrib Al-‘Arabi: 25 June 2013. http://www.alarabiya.net/ar/north-africa/2013/06/24/ارتفاع-نسبة-العنوسة-في-تونس-الى-60-.html [Accessed 4 October 2017]