Husband & Wife

 

A Message to Husbands & Wives

            Aristotle the legendary Greek philosopher said, “Man is by nature a social animal”. However, his animality must be controlled. Without the law, his survival is difficult. “At his best, man is the noblest of all animals; separated from law and justice he is the worst”. Similarly, being human when husband and wife are separated from law and commandments they are the worst. For a Muslim, the supreme law is the holy Quran and Sunnah. Their commandments are inviolable. The message is clear: “O you who have Faith! Obey Allah and His Messenger, and do not turn away from him while you hear (him)”. “And be not like those who say: We heard, but they do not hear”. (Al-Anfal: 20-21). The message to a husband and wife is also intelligible from this source.

            According to Syed Abul Ala Maududi (Book: Haqooq-al-Zojain), the primary purpose of marriage is to avoid fornication. “Do not even go close to fornication…”(Al Bani-Israel: 32). Marriage gives protection to women. The second purpose is tranquillity. “…He created for you wives from yourself so that you may find tranquillity in them…” (Al-Room: 21). Next purpose is secrecy between them. As it is provided: “They are clothing for you and you are clothing for them”. (Al-Baqarah: 187). The Tafseer says “Men and women are each other's garments: i.e., they are for mutual support, mutual comfort, and mutual protection, fitting into each other as a garment fits the body. A garment also is both for show and concealment of defects in the body.” (Interpretation by Yousaf Ali).

            Consensus and differences may occur between a husband and a wife. What should they do in such a case? What if there is a disagreement between them? The Quran says: “… if you disagree over anything, refer it to Allah and the Messenger, if you should believe in Allah and the Last Day. That is the best [way] and best in result”. (Al-Nisa: 59)

            The divorce ratio is increasing in Pakistan, one of the major reasons is defiance and ignorance of commandments ordained by Almighty Allah and acceptance of their statuses already established in injunctions of Islam i.e. the holy Quran and Sunnah. Jabir reported that Allah's Messenger (ﷺ) said: “Iblis places his throne upon water; he then sends detachments (for creating dissension); the nearer to him in rank are those who are most notorious in creating dissension. One of them comes and says: ‘I did so and so.’ And he says: ‘You have done nothing.’ Then one amongst them comes and says: ‘I did not spare so and so until I sowed the seed of discord between a husband and a wife.’ Satan goes near him and says: ‘You have done well.’ He then embraces him. (Sahih Muslim: 2813). Therefore, it is high time to recall and remember the commandments and the message of Islam for a husband and wife, as being ignored in our society and causing an increase in the ratio of divorce. These commandments are the duties and they must be accepted by both husband and wife.

            It is often said that Men and Women are equal. But Husband and Wife are not. Though one may disagree, however, it is what it is. “Men are in charge of women because Allāh has made one of them to excel the other, and because they spend from their means” (Al-Nisa: 34). This is not a superiority inferiority complex issue. This is how to maintain law and order within a family administration. Almighty Said, “And wish not for the things in which Allāh has made some of you to excel others…” (Al-Nisa: 32).

            Husbands have certain duties towards their wives, as enshrined in Quran and Sunnah. “And they (women) have rights (over their husbands as regards living expenses) similar (to those of their husbands) over them (as regards obedience and respect) to what is reasonable, but men have a degree (of responsibility) over them. And Allāh is All‑Mighty, All‑Wise”. (Al-Bakara: 228)., Besides, the duty of maintenance, protection, love, etc. a husband should be kind and moderate. This is beautifully explained by the Prophet (ﷺ) in a narration: “A believing man should not hate a believing woman; if he dislikes one of her characteristics, he will be pleased with another” (Sahih Muslim: 1468). It is also reported that “The most perfect of believers is the one who is best in character, and the best of you is he who is best to his wives” (Tirmizi: 1162).

            Husband also has to treat wife nicely. “Narrated Abu Huraira: Allah's Apostle (ﷺ) said, “Treat women nicely, for a woman is created from a rib, and the most curved portion of the rib is its upper portion, so, if you should try to straighten it, it will break, but if you leave it as it is, it will remain crooked. So treat women nicely” (Sahih al-Bukhari: 3331) Briefly this can be understood from a narration by “Mu'awiyah bin Haidah (R.A.): “I asked Messenger of Allah (ﷺ): “What right can any wife demand of her husband?" He replied, "You should give her food when you eat, clothe her when you clothe yourself, not strike her on the face, and do not revile her or separate from her except in the house”. (Riyad as-Salihin: 277)

            Wives also have certain duties towards Husbands as enshrined in Quran and Sunnah. First and foremost duty is obediency: “Therefore, the righteous women are devoutly obedient (to Allāh then to their husbands)…” (Al-Nisa: 34). This perspective of obediency can be gauged from following Ahadith. Abu Hurairah (R.A.) narrated that The Prophet said: “If I were to order anyone to prostrate to anyone, then I would order the wife to prostrate to her husband.” (Jami` at-Tirmidhi: 1159). It was narrated from Aishah (R.A.): that the Messenger of Allah said: “If I were to command anyone to prostrate to anyone else, I would have commanded women to prostrate to their husbands. If a man were to command his wife to move (something) from a red mountain to a black mountain, and from a black mountain to a red mountain, her duty is to obey him.” (Sunan Ibn Majah: 1852)

            The second duty, which is being ignored in our society, is to seek permission: obediency includes seeking permission for certain acts.  a wife cannot leave her husband’s house without his permission, even for a mosque. (See, Mishkat al-Masabih: 1059). She cannot be alone with a Na-Muhram (i.e. her husband or a person whom she cannot marry in any case forever; e.g. her father, brother, etc.) without permission. It is narrated Ibn`Abbas (R.A.): “That he heard the Prophet (ﷺ) saying, "It is not permissible for a man to be alone with a woman, and no lady should travel except with a Mahram”. (Sahih al-Bukhari: 3006). The wife even cannot spend from the husband’s property without his consent. As narrated by Abdullah ibn Amr ibn al-'As (R.A.): “The Prophet (ﷺ) said: It is not permissible for a woman to present a gift (from her husband's property) except with the permission of her husband”. (Sunan Abi Dawud: 3547) Even it was narrated by Abu Sa’eed (R.A.): “The Messenger of Allah (ﷺ) forbade women from fasting without the permission of their husbands.” (Sunan Ibn Majah: 1762) (Also see: Sahih al-Bukhari: 5192 & Musnad Ahmed: 3894, 3895).

            The third ignored duty in our society is to be grateful to the husband: as narrated by Abu Sa`id Al-Khudri: “On `Id ul Fitr or `Id ul Adha Allah's Messenger (ﷺ) went out to the Musalla. After finishing the prayer, he delivered the sermon and ordered the people to give alms. He said, "O people! Give alms.” Then he went towards the women and said. "O, women! Give alms, for I have seen that the majority of the dwellers of Hellfire were you (women)." The women asked, "O Allah's Messenger (ﷺ)! What is the reason for it?" He replied, "O women! You curse frequently, and are ungrateful to your husbands…” (Sahih al-Bukhari: 1462).

            Fourthly to act as guardian: as decreed by Almighty Allah in Quran: “… and guard in the husband’s absence what Allāh orders them to guard” (e.g. their chastity, their husband’s property, life and reputation), (Al-Nisa: 34) It was narrated from Abu Umamah (R.A.) that: “the Prophet (ﷺ) used to say: “Nothing is of more benefit to the believer after Taqwa of Allah than a righteous wife whom, if he commands her she obeys him, if he looks at her he is pleased if he swears an oath concerning her she fulfils it, and when he is away from her she is sincere towards him with regard to herself and his wealth (life and reputation)” (Sunan Ibn Majah: 1857). In short, Umm Salamah (R.A.) narrated that The Messenger of Allah said: “Whichever woman dies while her husband is pleased with her, then she enters Paradise.” (Jami` at-Tirmidhi: 1161)

            But when a wife violates these commandments of Islam. Almighty Allah said: “…As to those women on whose part you see ill‑conduct, admonish them (first), (next), refuse to share their beds, (and last) beat them; but if they obey you, seek not against them means (of annoyance). Surely, Allāh is Ever Most High, Most Great” (Al-Nisa: 34). Few western democracies disagree with the concept of the right of admonishment and in certain cases right to beat. However, this is unequivocal. The commandment is as clear as water. Iyas ibn Abdullah ibn Abu Dhubab (R.A.) reported the Messenger of Allah (ﷺ) as saying: “…Do not beat Allah's handmaidens, but when Umar came to the Messenger of Allah (ﷺ) and said: Women have become emboldened towards their husbands, he (the Prophet) gave permission to beat them...” (Sunan Abi Dawud: 2146)

            And if a wife persistently disobeys, then the husband has a right to divorce. However, it is narrated by Muharib (R.A.) that “The Prophet (ﷺ) said: Allah did not make anything lawful more abominable to Him than divorce” (Sunan Abi Dawud: 2177, 2178). Likewise, if the husband is persistent to disobey the commandments of Almighty Allah, a wife has a right to seek Khula. These must be used as a last resort for survival.      

            To conclude, both are held responsible for each other: there is a narration by Ibn`Umar (R.A.): “The Prophet (ﷺ) said, "All of you are guardians and are responsible for your wards. The ruler is a guardian and the man is a guardian of his family; the lady is a guardian and is responsible for her husband's house and his offspring; and so all of you are guardians and are responsible for your wards”. (Sahih al-Bukhari: 5200) and “…these (commandments) are the limits (set by) Allāh, and whosoever obeys Allāh and His Messenger will be admitted to Gardens under which rivers flow (in Paradise), to abide therein, and that will be a great success. And whosoever disobeys Allāh and His Messenger and transgresses His limits, He will cast him into the Fire, to abide therein; and he shall have a disgraceful torment”. (Al Nisa: 13-14). Life is sweet if governed by law, it is sour if ungoverned. The same applies to the relationship between a husband and wife. It must be controlled and governed.   

 

The Supremacy Debate: Constitution, Parliament, and the Basic Structure Theory

 

            The Supremacy Debate: Constitution, Parliament, and the Basic Structure Theory

            In a country that prides itself on being a democratic republic, the question of whether the Constitution or Parliament is supreme is a crucial one. This debate has been ongoing for decades, with proponents on both sides arguing passionately for their positions. While the answer to this question may seem straightforward, it is far from it. However, the debate over the supremacy of the Constitution or Parliament has gained further significance with the development of the Basic Structure Theory. The Basic Structure Theory emerged from the landmark Kesavananda Bharati case in 1973, in which the Indian Supreme Court held that the Parliament cannot amend the Constitution in a way that alters its basic structure. In this context, we will explore the arguments for both sides of the debate and try to come to a conclusion.

            The Constitution is the supreme law of the land, and its provisions are binding on all citizens and government bodies. It is the foundation of the country's legal and political systems and sets out the framework for the distribution of powers between the different branches of government. The Constitution guarantees certain fundamental rights to citizens, such as the right to life, liberty, and the pursuit of happiness. These rights are considered sacrosanct and cannot be taken away by any government or institution.

            Nevertheless, according to the Basic Structure Theory, certain fundamental features of the Constitution, such as the supremacy of the Constitution, separation of powers, and basic human rights, cannot be altered by the Parliament's amending power. The Basic Structure Doctrine established that the Constitution's fundamental features were inviolable, even by a constitutional amendment. In Kesavananda Bharati case, the Court further held that the judiciary had the power to strike down any amendment that violated the Constitution's basic structure.

            However, some argue that Parliament is supreme and some argue that Constitution is supreme. Parliament is the legislative branch of government and is responsible for making laws. It is composed of elected representatives who are accountable to the people. Parliament can pass laws and can amend any provision of the Constitution, provided they do not infringe on fundamental rights. This power to amend the Constitution is seen as a sign of Parliament's supremacy. On the other hand, Constitution is considered as the only safeguard against tyranny and abuse of power, even of parliamentarians. The Constitution sets out the limits of government power and prevents any one branch of government from becoming too powerful. It also protects the rights of citizens, which are enshrined in the Constitution and cannot be taken away by any government or institution. The Constitution is seen as the ultimate arbiter of disputes between the different branches of government and is the final word on matters of legality and legitimacy.

            Though, supporters of the supremacy of Parliament argue that Parliament is the voice of the people and is therefore the ultimate source of power. The people elect their representatives to Parliament, who are responsible for making laws on their behalf. Parliament is accountable to the people and can be removed from power if they fail to meet their expectations. Parliament is seen as the embodiment of the democratic will of the people and is therefore supreme. However, the Basic Structure Doctrine has a significant impact on the debate over the supremacy of the Constitution or Parliament. It ensures that the Constitution remains the supreme law of the land, and its provisions are not subject to the arbitrary will of the Parliament. It also upholds the principle of separation of powers and ensures that no branch of government becomes too powerful. It also recognizes that citizens’ rights are an essential part of the Constitution's basic structure and cannot be altered by the Parliament.

            In light of the Basic Structure Doctrine, the question of whether the Constitution or Parliament is supreme takes on a new dimension. The Basic Structure Doctrine establishes that the Constitution's fundamental features are supreme and cannot be amended by the Parliament. Parliament's powers are subject to the Constitution's basic structure and cannot be used to undermine it. Therefore, the debate over the supremacy of the Constitution or Parliament must take into account the Basic Structure Doctrine. While Parliament is the legislative branch of government and has the power to make laws, it cannot do so in a way that violates the Constitution's basic structure. The Constitution remains the supreme law of the land, and its provisions are binding on all citizens and government bodies, including Parliament.

            In conclusion, the debate over whether the Constitution or Parliament is supreme is a complex and nuanced one. Both sides though have some arguments, but ultimately, it is up to the courts to interpret the Constitution and decide whether Parliament has overstepped its bounds. And the Basic Structure Doctrine has significantly impacted the debate over the supremacy of the Constitution or Parliament. It ensures that the Constitution remains the supreme law of the land and upholds the principle of separation of powers. It also affirms the importance of fundamental rights and human dignity. While Parliament is an essential part of our democratic system, its powers are subject to the Constitution's basic structure, and it cannot infringe upon the Constitution's fundamental features. In the last, it can be said that what is clear is that the Constitution and Parliament are both essential components of our democratic system and must work together to ensure the protection of citizens' rights and the proper functioning of our government.

 

Hafiz Muhammad Azeem.

The writer is an advocate of the high court and writes on various topics. He can be reached at hafizazeemkhokhar@gmail.com. His articles can be accessed on hmazeem.blospot.com. He holds an LL.M. from the Punjab University and works as Assistant District Public Prosecutor in Punjab Public Prosecution Department.