Note: On various pretexts, the jurisprudential ruling on “the requirement of the wife obtaining the husband’s permission to leave the house” is reread: at one time because a female athlete’s husband refuses permission for her to leave the country to participate in competitions, and at another time due to statements by a women’s rights activist. This issue has been one of the main topics of conversation regarding women’s rights in Islamic jurisprudence for decades. Dr. Kobra Pour-Abdollah, however, believes this issue must be analyzed under the “family consolidation” theory. According to this faculty member at Imam Sadiq University, the jurisprudential ruling requiring the wife’s permission from the husband to leave the house is not restricted to a specific time and place, but is trans-spatial and trans-temporal. Having obtained her doctorate from the Women’s Seminary of Qom, she is a faculty member at the Women’s Campus of Imam Sadiq University and author of the books Jurisprudence of Children (Fiqh-e Atfal) and The Conditionality of Trustworthiness for Child Custody (Shartiyyat-e Amanat baraye Hazanat). The detailed text of Contemporary Jurisprudence‘s exclusive interview with this professor and researcher of women’s and family jurisprudence follows:

Contemporary Jurisprudence: In general, in what matters does the husband’s guardianship (wilayat) over the wife apply?

Pour-Abdollah: Citing the principle of guardianship (wilayat) and citing numerous interpretations, particularly among later scholars, existing regarding the indication of the verse “Men are in charge of women by [right of] what Allah has given one over the other and what they spend for maintenance from their wealth. So righteous women are devoutly obedient, guarding in [the husband’s] absence what Allah would have them guard. But those [wives] from whom you fear arrogance – [first] advise them; [then if they persist], forsake them in bed; and [finally], strike them. But if they obey you [once more], seek no means against them. Indeed, Allah is ever Exalted and Grand,” it must be stated: We do not accept the general title of the husband’s guardianship over the wife and possess no proof for it. Neither in the discussion of leaving the house nor in the general discussion of marital non-compliance (nushuz) and compliance (tamkin) does any trace of the concept of guardianship exist. Even in the statement of the author of Jawahir in volume 31 of Jawahir al-Kalam, which refers to the criterion of obedience in identifying the subject of the wife’s non-compliance, no image of the concept of guardianship is observed to suggest that this obedience stems from the husband’s guardianship rather than from proofs entailing the obligation of obedience and compliance.

Contemporary Jurisprudence: Given the explicit statements of traditions (hadiths) requiring permission from the husband for the wife to leave the house and the definitive practice of religious adherents (sirat-e qat’iyyah-e mutasharri’ah) regarding it, can it be considered a customary matter resulting from requirements of time and place?

Pour-Abdollah: This issue represents an instance of a general major premise (kubra-ye kulli) repeated numerous times regarding various rulings. When we state that a ruling was specific to its own time and place and is not permanent, perpetual, and so-called trans-temporal and trans-spatial, we immediately face the response that the primary principle in rulings is their permanence, trans-temporality, and trans-spatiality; therefore, the party claiming the ruling’s restriction to a specific time and place must prove it, otherwise, as long as this matter remains unproven, we resort to generalities (‘umumat) and absolute expressions (itlaqat) establishing the trans-temporal and trans-spatial nature of rulings.

Regarding this issue as well, various points exist. One of these points is that fundamental proofs do not convey the requirement of obtaining permission from the husband for the wife to leave the house; because in addition to certain traditions articulating this ruling being weak in chain of transmission (sanad), one can examine the ruling through paths such as primordial perception (darak-e fitri), definitive reason (‘aql-e qat’i), and interests and criteria underlying the ruling, deriving the restriction of this ruling to a specific time and place by adhering to these proofs. On the other hand, it may be stated that the Lawgiver, in articulating this ruling, in reality sought to express a division of labor in family affairs between husband and wife, such that livelihood and out-of-home affairs rest upon the husband, and internal home affairs rest upon the wife; therefore, the husband requires leaving the house to secure livelihood, whereas the wife, due to managing internal home affairs and the necessity of observing modesty and hijab, possesses less need to leave the house, and this leaving can be placed under the husband’s supervision.

Contemporary Jurisprudence: Given the mental subconscious (irtikaz) of religious adherents during the era of text issuance making the permissibility of the wife leaving the house dependent on the husband’s permission absolutely, can it be restricted to instances where leaving the house conflicts with the husband’s conjugal enjoyment (istimta’)?

Pour-Abdollah: We can utilize the capacity of mental subconscious (irtikaz) both for expanding and restricting the semantic indication of the proof in question. Mental subconscious is among the elements and factors for discarding specificity (ilgha-ye khususiyyah). On the one hand, it can cause generalization, and on the other hand, it can cause specialization. Here, the question implies generalization; meaning the question is whether religious adherents during the era of text issuance held this general understanding of this ruling that the wife’s departure from the house always requires the husband’s permission, or whether this matter was restricted solely to instances of conflict between leaving the house and the wife’s conjugal enjoyment?

In response to this question and within a primary understanding, it can be stated: My specific view is that the most vital matter in the issue of family in the view of the Lawgiver is the issue of “family consolidation,” referred to in contemporary research as the “theory of family consolidation.” For example, from the verse “And of His signs is that He created for you from yourselves mates that you may find tranquility in them; and He placed between you affection and mercy. Indeed in that are signs for a people who give thought” [1], it is understood that the Lawgiver’s most important criterion in relations between spouses is solidarity, empathy, and the consolidation of family relations. If this point is understood and attended to, many Sharia rulings will be comprehended and many legal equations pursued by Western law will be fundamentally rendered moot. When the wife’s departure from the house without the husband’s permission causes resentment and the destruction of strong family relations, this matter is improper and is not merely restricted to instances of opposing the husband’s right to conjugal enjoyment, but rather, absolutely, it must be accompanied by the husband’s companionship and permission so that the foundation of the family remains strong. This point is among the specificities of Islamic Sharia, bearing no modeling after other legal schools.

Contemporary Jurisprudence: Given the custom of large Iranian cities that does not consider the wife leaving the house—at least during the day and for customary matters like shopping and visiting relatives—as requiring the husband’s permission, can this custom be considered an implicit inherent condition of the contract (shart-e irtikazi-ye zimn-e ‘aqd) and a ruling issued on the non-requirement of the wife obtaining the husband’s permission to leave the house in customary instances?

Pour-Abdollah: Firstly, it must be noted that this point raised in the question exists not only in cities, but also in villages, where it is customary for women to leave the house for earning a livelihood, cooperating with the husband, or visiting relatives. Secondly: It appears that the primary criterion in the issue is the very point stated in response to the previous question, namely the necessity of attending to the criterion of family consolidation and the necessity of preserving women’s modesty and hijab, which must not be neglected. Women, due to their vulnerable nature compared to men, require greater care and attention, being more exposed to moral and religious incidents; therefore, the requirement to obtain permission from the husband to leave the house is not something that such customs can counter and, for example, be considered an implicit inherent condition of the contract.

Contemporary Jurisprudence: When a woman at the time of marriage is employed or a professional athlete, can this matter, at least regarding the specific case, be considered an implicit inherent condition of the contract (shart-e irtikazi-ye zimn-e ‘aqd) and a ruling issued on the non-requirement of this wife obtaining permission from the husband to leave the house in matters related to employment or professional sports?

Pour-Abdollah: At the time of marriage, being employed or a professional athlete can serve as an implicit inherent condition of the contract; hence, just as this woman in the assumption of not marrying would remain committed to her protective requisites, after marriage she can also, while performing her duties toward her husband, attend to her protective requisites. Therefore, regarding this question, it can be stated: One should not consider absolute expression (itlaq) on both sides, saying that permission to leave the house from the husband is absolutely required or not required; rather, one must attend to that very point of family consolidation and consider its considerations and requisites.

Contemporary Jurisprudence: Can rulings such as “the requirement of the husband’s permission for the permissibility of the wife leaving the house” be considered as arising from the nature of marriage during the Lawgiver’s era, which consisted of “purchasing budz’ [conjugal usufruct] in exchange for dowry”? Therefore, with the change in the nature of marriage at present, should a ruling be issued changing such rulings?

Pour-Abdollah: The nature of marriage does not differ and is not convertible, suggesting it was the purchase of budz’ during the Lawgiver’s era and functions in another manner at present. Marriage possesses neither the nature of a mere transaction nor the nature of a purely devotional matter; rather, it is a type of transaction taking place in exchange for a dowry (mahriyyah), and this matter is not restricted to the era of text issuance, but continues at present as well; hence, rulings that existed during the Lawgiver’s era are not subject to change due to the aspect raised in the question.