control and sexuality

Criminalising Sexuality: Zina Laws as Violence Against Women in Muslim Contextsto stress that the notion and legal logic of ‘ownership’ and sale underlie their conceptionof marriage and define the parameters of laws and practices, where a woman’s sexuality, ifnot her person, becomes a commodity and an object of exchange.The logic of women’s sexuality as property, and its sale on marriage, which informs theclassical fiqh texts, is at the root of the unequal construction of marriage and divorce,and sanctions the control over a woman’s movements. It is also this logic that justifiespolygyny and defines the rules for the termination of marriage. A man can enter up tofour marriages at a time, 31 and can terminate each contract at will. Legally speaking,talaq, repudiation of the wife, is a unilateral act (iqa‘), which acquires legal effect by thedeclaration of the husband. A woman cannot be released without her husband’s consent,although she can secure her release through offering him inducements, by means ofkhul‘, which is often referred to as ‘divorce by mutual consent’. As defined by classicaljurists, khul‘ is a separation claimed by the wife as a result of her extreme ‘reluctance’(karahiya) towards her husband. The essential element is the payment of compensation(‘iwad) to the husband in return for her release. This can be the return of the dower, orany other form of compensation. Unlike talaq, khul‘ is not a unilateral but a bilateral act,as it cannot take legal effect without the consent of the husband. If she fails to secure hisconsent, then her only recourse is the intervention of the court and the judge’s powereither to compel the husband to pronounce talaq or to pronounce it on his behalf ifthe wife establishes one of the recognised grounds – which again vary from school toschool. 32Another set of rulings that are invoked, today, to sanction control over women and to limittheir freedom of movement are those on hijab. 33 They are used to prescribe and justify thepunishment of women for non-observance of the dress code, using ta‘zir, the discretionarypower of the judge or Islamic state. But this has no basis in Islamic legal tradition. Unlikerulings on marriage and zina, classical fiqh texts contain little on women’s dress code. Theprominence of hijab in Islamic discourses is a recent phenomenon, dating to the Muslimencounter with colonial powers in the 19 th century, when there emerged a new genreof Islamic literature in which the veil becomes both a marker of Muslim identity and anelement of faith.Classical texts – at least those that set out legal rulings – address the issue of dress forboth men and women under ‘covering’ (satr). These rulings are found in the Book of Prayer,31 In Shi’a law a man may contract as many temporary marriages (mut‘a) as he desires or can afford.For this form of marriage, see Haeri (1989).32 Classical Maliki law grants women the widest grounds (absence of the husband, his mistreatment,failure to provide and failure to fulfil marital duties), which have been used as the basis forexpanding women’s grounds for divorce in the process of codification, see Mir-Hosseini (1993,2003).33 Many terms commonly used today in different countries for ‘the veil’, such as hijab, purdah,chador, burqa, are not found in classical fiqh texts.33