Note: When the phrase “spousal violence” (khushunat ‘alayh-e hamsar) is used, at first glance it is interpreted as the husband’s violence against the wife. This is while violence is conceivable from both the husband and the wife. Perhaps the origin of this initial association was the physical superiority of the man over the woman, which made conceiving violence committed by the wife against the husband difficult; however, at the present time, when other dimensions of violence such as psychological violence, verbal violence, etc., have also been laid bare, conceiving the wife’s violence against the husband is easily achievable. We conversed regarding the dimensions of spousal violence with Hujjat al-Islam wal-Muslimeen Dr. Majid Dehghan. The faculty member in the Department of Women and Family at the University of Religions and Denominations believes that to understand jurisprudential rulings in the realm of women, one must first set aside feminist approaches and look to jurisprudential proofs and sources. At the same time, he considers taking the side of women in policy-making and legislation necessary, though not due to a feminist approach. The detailed exclusive interview with this member of the Scientific Council of the Department of Jurisprudence of Women and Family at the Research Institute of Contemporary Jurisprudence is presented below:
Contemporary Jurisprudence: What does spousal violence, especially against the wife, mean, and what dimensions does it possess?
Dehghan: Mistreating and harassing the wife is at times under titles that are specifically prohibited in jurisprudence as well; such as prohibition of insult, false accusation (tahmat), mockery, backbiting (ghiybah), disclosing secrets, and so forth; and at times it is in a manner where the husband does not commit an act pursuable in judicial courts, yet acts in a way that disrupts the woman’s psyche—for instance, when the woman desires something but the husband pays no attention to it. This act is neither false accusation, nor slander (iftira’), nor backbiting, nor mockery, nor… yet it is considered a form of psychological harassment of the woman, distinct from physical violence and battery.
Contemporary Jurisprudence: Is “spousal violence” an independent title possessing a single ruling, or is it an abstract title whose each instance carries a different ruling?
Dehghan: The title “spousal violence” does not exist in our jurisprudence; however, titles such as false accusation, insult, slander, backbiting, and so forth exist. The difference between Islamic literature and liberal and feminist literature is that we consider these titles sins per se, even if both parties agree to perform them. Likewise, we consider titles like marital submission (tamkin) legitimate, whereas in feminist literature it might be considered a form of violence. Therefore, spousal violence is not an independent title in Shia jurisprudence, but many of its instances can be placed under the aforementioned titles or titles such as “psychological hardship” (haraj-e ravani).
Contemporary Jurisprudence: Is violence a Sharia matter, or a customary (‘urfi) and rational (‘aqla’i) matter? By whom should its instances be determined?
Dehghan: It is necessary to separate discussions legally and morally. Morally, certain behaviors might be considered unseemly, because morality seeks to fulfill the Lawgiver’s maximal criteria. However, jurisprudentially, those very behaviors might be permitted.
However, in response to your question it must be said: In the sphere of jurisprudence, rulings apply to subject matters (al-ahkam tab’an li-l-mawdu’at), and this is a purely Sharia matter in which custom has no intervention. Yes, custom can play a role in determining instances of the Lawgiver’s subject matters; but for custom to discern whether this ruling is an instance of violence or not is in truth intervention in Sharia rulings, which rests entirely upon the Lawgiver and is not considered custom’s domain of intervention. Of course, it must be noted that custom at present has transformed into a dominant culture. For example, in the past, family norms were clear and no one protested them. For instance, the man was the breadwinner and the woman assumed the role of managing the home; but in today’s culture, everyone wants to be a breadwinner and engage in economic activity.
Contemporary Jurisprudence: In cases of conflict between Sharia rulings and texts and rational instances of spousal violence, should one be considered a fixed matter and the second changed according to it? From a Sharia perspective, which of these two is fixed and which is variable?
Dehghan: In these cases, one must consult jurisprudential proofs and sources. Theories of gender violence might consider an action an instance of violence, yet jurisprudence might not commit to it. Of course, in jurisprudence, a matter termed discretionary punishment (ta’zir) exists, which the Sharia ruler (hakim al-shar’) can utilize in appropriate cases. This is an important matter and can be utilized as a tool to confront real violence in the family—for instance, the ruler establishing discretionary punishment for a man who expels his wife from the house. This is an important capacity for the science of jurisprudence that can also be utilized in legal science derived from jurisprudential science.
Contemporary Jurisprudence: Are the generalities (itlaqat) of verses and narrations in explicit cases such as permissibility of marital enjoyment from the wife at any time, permissibility of striking the wife in case of rebelliousness (nushuz), impermissibility of the wife leaving the house without the husband’s permission even in the husband’s absence, etc., restricted to specific social and geographical conditions of the text issuance era, or do they express a permanent matter for all humanity across all times? Why?
Dehghan: Generally speaking, it must be said that Islamic Sharia is an eternal Sharia, not restricted to a specific time and place. The issue of historicity versus trans-historicity of the Quran and rulings is among matters paid attention to recently in recent years. Among narrations cited by advocates of Sharia eternity is the Hadith: “The lawful of Muhammad is lawful forever until the Day of Resurrection, and his unlawful is unlawful forever until the Day of Resurrection” (Halalu Muhammadin halalun abadan ila yawm al-qiyamah wa haramuhu haramun abadan ila yawm al-qiyamah), which is reported in various Shia and Sunni sources in different ways. In the book Al-Kafi as well, this phrase is used within two different narrations, where in one, besides pointing to the eternity of the Prophet’s teachings, it rejects false innovations (bid’ah), and in the other, points to the non-abrogation of the Islamic religion unlike previous religions. Of course, recently one religious thinker, Ayatollah Seyyed Kamal al-Haydari, claimed that these two Hadiths lack a sound chain of transmission (sanad sahih) and represent a famous saying passed around by mouth, where the judgment of soundness for this Hadith by certain scholars was based not on chains-of-transmission examination, but merely due to their reliance upon early scholars.
However, generally speaking, it is clear that Sharia rulings were not brought for a specific temporal vessel, and time was not a restriction on issuing Sharia rulings. For example, at the time of text issuance, the family was defined within the tribe, yet in the Quran no mention is made of this, and husband and wife are paid attention to as the pillars of the family; therefore, one cannot say that because Quranic verses were revealed in a society maintaining a tribal approach, they hold no function in our time when social life style is not tribal and must be revised. Yes, if in a certain place the criterion (malak) of a Sharia ruling is discovered, and we discover that this criterion exists specifically for one time and one specific society, one can set aside the Sharia ruling and alter it; however, proving this matter must occur in a scholarly manner and based on jurisprudential approaches. For example, at the time of text issuance, the family was a rite in tribal society, hence rulings were legislated proportionate to this perception of family; however, at present, the family is an institution for creating affection and love, hence requiring distinct rulings.
Contemporary Jurisprudence: Is spousal violence restricted merely to the husband’s violence against the wife, or does it also include the wife’s violence against the husband?
Dehghan: Both must be taken into consideration: both men’s violence against women and women’s violence against men, because jurisprudential titles for this matter are common to both. For example, oppression (zulm), slander (iftira’), false accusation (tahmat), etc., are titles possessing concrete instances regarding both women and men. Apart from a feminist viewpoint, the view of jurisprudence is mostly directed toward the vulnerability of women, and rulings were mostly legislated in this connection as well; for instance, in certain religious sources it is stated to overlook women’s behaviors. Therefore, in both policy-making and legislation, the side of women must be taken more; however, this is not due to a feminist approach, but rather owing to the greater vulnerability of women compared to men.