The problem (of the women’s census) and the role of customs and legislation | Articles and studies

Some time ago, on social networks and on some channels, the problem of the “list of the woman’s personal property” was raised, and people argued, between those who were dissatisfied with it and rebelled against it, expressing many objections and indignation. For reasons that seem valid, and others consider it an immunity for the woman and a protection of her legitimate rights, and see no shame or dishonor in it. For reasons that are also not without merit, and this issue is still on the table, it flares up, then fades, then soon returns to flare up and intensify, and I do not think that its door will be closed before a solution is worked out that they recognize the creature’s eyes.

Legitimate compass adjustment tools

To begin with, no one doubts that dowry is the exclusive right of a woman, as God has imposed it in the decisive book: (And give women their dowry like a bee), just as no one doubts that a woman has an independent financial responsibility; And she has every right to dispose, if she wants, she will keep her dowry for herself, and if she wants, she will give it to him or something like that, and if she wants, she will agree with him on a formula that allows him to enjoy her or her portion with the stability of her ownership, and the Most High said in the same verse: So eat is good and the esophagus); Which means two things: the first is her complete authority over this money, the second: permission for him to enjoy from it what she has allowed him to enjoy.

And the custom in Egyptian countries relied on these provisions to create a formula that relieves the husband and protects the wife’s right. Instead of charging the husband the cost of furnishing the marital home above the price of the dowry itself, we make the furniture that they enjoy is the same dowry that the wife deserves and owns, and justice orders that it be written in the contract. It protects and preserves the right, so it was a list of the woman’s movable property.

So, when the scholars saw that this custom established by men was not contrary to God’s law, and achieved the desired interest; They approved it, favored it and issued fatwas on its legitimacy. Then, when the legislative institutions saw the flow and persistence of this custom among people, they worked to codify it and formulate legal rules that regulate it and resolve disputes. Nor is the law permanent, because the fatwa in matters related to customs is changeable according to the change of customs; So they said in such matters: “The difference in decisions is not denied at different times.” So, has the current custom in this matter settled on what mostly achieves interest? Or find a reason to reconsider the problem?

Errors in legislation and deviations in application

This situation still achieves interest for the most part; With the exception of some of what we will refer to, there is nothing in it that expressly contradicts the Shari’ah, and therefore the legal rule that says: “The custom is clear and the custom is taken into account” still applies in this case, so that it is not social maturity to issue laws or push out fatwas that deviate from the course, with legal customs of hand-wringing and returning it to its place from where it originated; So, what is the solution – then – in cases that are considered unfair to the husband?

As far as the legislation is concerned, despite the fact that the wife is a chattel (naked) and a trust of her husband, the inclusion of her waste within the article (341 Penalties) is a legal error that entails many complaints. Because the law considers extravagance as a misdemeanor punishable by imprisonment, considers it a crime against honor and does not distinguish between wasting “marriage furniture” and real extravagance, and according to the general legal rule, everything is treason. of trust, while the reality is different within the family incubator. It is difficult to prove the existence of intent to embezzle From the husband to the wife’s belongings while living in the same house, and criminal intent in the criminal offense of abuse of trust. it is not achieved by merely delaying the fulfillment or the behavior of the defendant in the matter entrusted to him, until it is proved that it is connected with the perpetrator’s intention to add money to himself and embezzle it, in addition to the fact that the woman’s things are unwilling Between being bare for use and to be naked for consumption, and the borrowers hesitated between two decisions, because the jurists differed: Is it guaranteed in any case or not guaranteed for the borrower unless he exceeds or violates ? The two teams stand at the head of the first Shafia, and at the head of the second Abu Hanifa.

In parallel, in practice, the woman’s family stands in a hidden position; To use the established custom of humiliating the husband and putting shackles around his neck, so that sometimes they are not interested in what he bought and how much he bought, as much as they are interested in what he will write on the list. and in what form; Which means the woman’s guardians want to pocket a message that allows them to lock him up whenever they can if he’s not doing the woman any good, and that’s – according to Omar al-Haq – an outrageous injustice, although not general, it’s disturbing and terrifying.

Partial and radical solutions

Therefore, we must hurry to find legal solutions by adjusting the “list of women’s personal property” in such a way as to pave the way for transferring the dispute about it – at least in the first instance – to the Family Court, that is, the Supreme Administrative Court. issued a verdict a few months ago that the criminal offense of extravagance offends human morals, but does not harm honor. This verdict – although it does not fulfill what is required – is a step that confirms the possibility of changing the legislation in a way to achieve justice and remove injustice, and on the other hand , people can agree on a formula in writing the list that does not put the husband’s neck under the sword of the penalty of extravagance, and at the same time guarantees her financial right, and the Egyptian Muslim people are called here to depart from justice and not to be dissuaded about everything in which there is injustice, especially with establishment of mixed marriages that call for mercy.

As for radical solutions, there is no other way for them than by creating a new custom, which is more in line with the Sharia and consistent with its goals and which adheres to the situation in which people live. And that (the net) is worn as a gift to the bride and not as part of the dowry, and that the husband furnishes his house with measure and measure.