Gender Justice and Legal Reform in Egypt. Mulki al-Sharmani

interviews.

      I am greatly indebted as well to Dr. Heba Raouf Ezzat, professor of political science at Cairo University, for her time and insights in the interview as well as for graciously agreeing to chair and moderate one of the workshops we organized on this research in 2008.

      Over the years, there has been a circle of colleagues and friends with whom I shared research interests in family law, the question of gender, and Islamic feminism, and from whom I have learned a great deal. Their insights have helped my thinking and benefited me in the course of this work. In particular, my thanks go to the anthropologist Ziba Mir-Hosseini, cofounder of Musawah and professorial research associate at the Centre of Islamic and Middle Eastern Law (CIMEL) at the School of Oriental and African Studies (SOAS), University of London. Ziba has been a great mentor, research partner, and a wonderful interlocutor and friend. I also thank Professor Lynn Welchman at CIMEL for her feedback on earlier presentations of this research in 2007 and 2008. I thank Marwa Sharafeldin, the Egyptian researcher, activist, and member of the Knowledge Building Working Group at Musawah, and Azza Soliman, the lawyer, activist, board director of the Center for Egyptian Women’s Legal Assistance (CEWLA), and member of the international advisory board of Musawah. With Marwa and Azza, I have had many illuminating discussions about Egyptian family law and the question of gender justice.

      I would also like to thank the global movement Musawah for providing me with a forum where I presented some of this research in two of Musawah’s workshops in Cairo (2007) and Amman (2011). My thanks, in particular, go to Zainah Anwar, director of Musawah, and my colleague Jana Rumminger, member of the Musawah Knowledge Building Working Group.

      I am thankful to my department, the Faculty of Theology, and particularly to the Unit of the Study of Religions, at the University of Helsinki, which provided me with the resources and time to write this book, as part of the activities that I am undertaking in the Academy of Finland’s research project, Islamic Feminism: Tradition, Authority, and Hermeneutics.

      Very special thanks also to Amiirah Salleh-Hoddin, master’s student at the University of Helsinki and my research assistant who has accompanied me over the past eight months in the journey of completing this work. I am indebted to Amiirah for endless hours of editing and research. Thank you, Amiirah. I would also like to thank Jana Turk for her assistance with the indexing for this book.

      My final thanks go to my family and three special women for their unwavering love and support. They made this book and other important endeavors in my life possible.

Introduction

      In 1975, I went with my father to a movie theater in Cairo to see the Egyptian movie Uridu hallan (I Want a Solution). It was my first time, a ten-year-old, to go to a movie theater and to be exposed to the message of this classic movie. The film—which features the renowned Egyptian actress the late Faten Hamama—has often been described as a dramatic and poignant artistic depiction of the gender-based legal inequalities that Egyptian women suffer in marriage and divorce (Elsadda 2011; Sonneveld 2012). The story of the protagonist of the film, Duriya, and her painful and unsuccessful pursuit of a fault-based judicial divorce from a violent and cheating husband highlight several key issues in the relationship between gender justice and family law. The film, first and foremost, raises the issue of unequal divorce rights. While Duriya’s husband, if he so wished, could divorce her unilaterally and extrajudicially, Duriya’s only option for a way out of an abusive marriage (since her husband declined to divorce her) was a long and arduous legal process in which she faced insurmountable obstacles to substantiate spousal harm.

      The movie also highlights the challenges that women encounter due to gaps and loopholes in both the written codes and the legal process, which marginalize female disputants. Some of the featured problems in the movie include the inability of wives to make claims to the conjugal home when their husbands divorce them unilaterally and the ensuing injustice to women, particularly elderly and childless wives. Another problem depicted in the movie is men’s abuse of the principle of ‘wifely obedience’ as they petition obedience lawsuits against their wives in order to avoid paying spousal maintenance or to derail their wives’ pursuit of divorce.

      The complex relationship between state-codified family law and religion is another message alluded to in the movie. Duriya asks the minister of justice, in a meeting arranged by her influential journalist friend, why the family law (at the time) does not give women the right to khul‘ divorce. This no-fault divorce, which comes from fiqh (Islamic jurisprudence), is initiated by women and is secured without the need to prove any spousal harm, provided that wives relinquish some (or all) of their financial rights (Arabi 2001; Tucker 2008). Duriya raises the question of the divergence between the state family law and Islamic jurisprudence because Egyptian personal status laws are drawn from Islamic jurisprudence—albeit through a modern process of codification resulting in mixed and uneven consequences. The legal model of spousal roles, encapsulated in the fiqh concept of a husband’s qiwamah (guardianship and authority) over the wife, has been the framework under which unequal divorce rights, unequal parental rights, and polygyny have been sanctioned in classical jurisprudence as well as in many modern family laws (Mir-Hosseini 2015). The principle of ‘wifely obedience’ itself, which is drawn from Islamic jurisprudence, also reflects the hierarchical model of spousal roles and rights: spousal maintenance in exchange for wifely obedience. With codification, wifely obedience, furthermore, became physically enforceable by the state’s machinery, as husbands who won obedience cases resorted to the power of law enforcement officials to force their wives to return to the conjugal home, until this measure was abolished in 1967. In fact, in the movie, after Duriya’s husband wins an obedience case against her, she runs away from the police who have come to take her by force to the conjugal home. Thus, while wifely obedience is derived from Islamic jurisprudence, the forced return of wives to the conjugal home was the result of the state’s appropriation and transformation of fiqh rulings.

      At the end of the movie, viewers are left with the sense that women, whether poor or from privileged backgrounds, are marginalized citizens with limited agency, precisely because of their subordinate legal position in the family domain. Duriya may be a well-educated woman with financial and family resources, but her life is still in limbo and she is unable to make any decisions to move forward as she is locked in an unwanted marriage because of the state’s family law. Similarly, poor wives, as depicted in the courtroom scenes in the movie, can do very little to protect themselves from the economic hardships resulting from husbands divorcing them at whim and often without giving them their financial dues.

      Uridu hallan, though better known, is not the only film that tackled the problem of gender-based inequalities in Egyptian family law. In the 1980s, the television film Asfa, arfud al-talaq (I Am Sorry, I Refuse the Divorce) was aired. The screenplay was written by the actress and scriptwriter Nadia Rashad, known for her socially conscious and gender-sensitive work.¹ Rashad also plays the role of a lawyer and a close friend of the protagonist in the film, the latter played by the popular actress Mervat Amin. The film focuses on the problem of men’s right to unilateral divorce, sanctioned by state laws as well as dominant religious discourse, through the story of a devoted stay-at-home wife and mother who has been happily married for ten years to a successful doctor (played in the movie by the actor Hussein Fahmy). The wife’s world is shattered when her husband divorces her unilaterally after he became romantically attached to another woman. It is not only the betrayal of her husband that causes the protagonist great distress, but also, and particularly, the injustice of her husband’s unchecked right to end their marriage unilaterally and extrajudicially. She solicits the help of her best friend who is a lawyer to bring an unusual court case against her husband, contesting his right to unilateral repudiation.

      At the other end of the spectrum of movies about family law and gender rights, there have also been a number of well-known films that questioned some of the gender-sensitive reforms that were introduced in the country’s family law over the last four decades. For example, and again in the 1980s, the film al-Shaqa min haq al-zawja (The Apartment is the Wife’s Right) was a satire on the newly introduced law at the time, which gave divorced