The Religious Arguments in the Debate on the Reform of the Moroccan Family Code

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THE RELIGIOUS ARGUMENTS IN THE DEBATE ON THE REFORM OF THE MOROCCAN FAMILY CODE^a

Aïcha El Hajjami

1. Introduction

Upon independence, Morocco undertook the codification of its family law, which had been managed by judges (qāḍīs) and based on the scattered collections of the Maliki school, one of the four Sunni schools of law. The personal status code, known as the Mudawwana, was drawn up by a commission appointed by King Mohammed V and consisting of scholars (ʿulamāʾ) including ʿAllal al-Fasi (d. 1974), the champion of Moroccan reformist Salafism. In various writings, ¹ he had already promoted bold legal reforms regarding women’s rights, such as abolishing matrimonial guardianship, banning polygamy and instituting compensation for the repudiated wife regardless of the grounds for repudiation, based on an effort to interpret the religious texts (ijtihād) in connection with the demands of contemporary social reality. However, these innovative ideas were not accepted by the other members of the commission, which included learned ʿulamāʾ such as Mohammed Belarbi Alaoui (d. 1964) and Mukhtar al-Soussi (d. 1963). The Mudawwana enacted in 1958 faithfully reproduced certain dogmatic legal rules, made by Maliki jurisconsults for a bygone era and context, which were no longer suited to the social reality of Morocco in the twentieth century.²

The Mudawwana thus confined the woman to the status of an eternal minor. In marrying, she was subject to matrimonial guardianship; once married, she owed obedience to the head of the family, her husband, in exchange for maintenance (nafaqa). The practice of polygamy was unrestricted; there was only a fair-treatment requirement of a purely moral nature with no judicial oversight. The husband had the discretionary power of unilateral divorce, whereas the wife only had the right to judicial divorce, if she could provide evidence; or to separation through compensation (khulʿ). The khulʿ, in practice, often enabled a recalcitrant husband to financially and emotionally blackmail his wife, forcing her to give up all her rights, including child custody. Upon divorce, the mother would be given custody (ḥaḍāna) of the children only if she did not remarry or take up residence far from the father’s home.

The state of legal insecurity instituted by the Mudawwana led to grave family problems. That is why, ever since its promulgation, various voices have been criticising its institutionalised inequalities and calling for change. From the late 1970s onwards, these demands from women’s movements intensified, despite a climate of suspicion. It should be kept in mind that the articulation of family law within the Islamic reference frame, in a society where religion is omnipresent but is also very much influenced by the fallout of modernity, makes the reform of women’s legal status a complex and sensitive question, as religious, political and socio-cultural factors intertwine.

Still, after several abortive initiatives, a Mudawwana reform saw the light in 1993, drawn up by a royal commission of ʿulamāʾ and jurists. Deemed insufficient by the women’s movements, the reform was, nevertheless, original in that it desacralised the Mudawwana, the provisions of which had been equated with the Shariʿa, and thus held by a large fringe of Moroccan society, including the fuqahāʾ (religious jurists),³ to be untouchable as the faithful rendering of the word of God.

Later, Morocco’s political opening, which allowed opposition parties into government, made the improvement of women’s legal situation in the private sphere a central issue in the development and modernisation of society. In March 1999, the prime minister of the new government announced the draft National Action Plan for the Integration of Woman in Development, prepared by the Family, Child and Social Protection Department. The draft’s legal section included proposals for banning polygamy, abolishing the walī institution (matrimonial guardian), raising the marriage age of girls from 15 to 18 years, instituting judicial divorce and dividing conjugal property acquired during the marriage in case of divorce.⁴

This action plan, which was part of the implementation of the recommendations arising from the 1995 Beijing Conference platform, caused a virulent reaction from the Islamic movement. The concern focused on both the legal part, its frame of reference and the drafting procedure, which had not included ʿulamāʾ or political factors from the Islamic movement.

The ensuing debate was dominated by the clash between two views of women’s rights and roles in society,⁵ inspired by two seemingly incompatible reference frames: that of Islam, and that of human rights as set out in international conventions.⁶ Nonetheless, the salience of Islam on all levels of Moroccan political⁷ and social reality⁸ meant that both camps would largely have to resort to religious arguments, though the use of scripture and jurisprudence to support one position or the other was rather superficial, and more often led to a battle of texts than an in-depth scientific debate.

On the other hand, the involvement of jurists/theologians in the reform debate, before and after the code was adopted, allowed a better analysis of the religious arguments. While all the ʿulamāʾ adhere to the precepts of Islam and ijtihād as sources of inspiration for any family law reform, some of them, like Ahmed El Khamlichi,⁹ Mohammed El Habti El Mawahibi¹⁰ and Idris Hammadi¹¹ took notable stands in favour of women’s demands. In their writings, pleading for the supporters of reform, they held that the proposed measures would not in any way conflict with the categorical foundations of Islam, as they fell under what fiqh terms al-masāʾil al-khilāfiyya, where there is no definitive consensus among the classical jurisconsults. They could, therefore, be subject to an up-to-date ijtihād, taking into account the development of society and women’s aspirations to equality and equity.

Other ʿulamāʾ rose up against some claims they judged to be against Islam and its jurisprudence, in particular professors Ahmed Raysouni,¹² Mohammed El Habib Toujkani¹³ and AbdelKabir Alaoui Mdaghri.¹⁴

This chapter draws largely on the arguments developed by each side to illustrate the positions on the new family code, which includes all the legal proposals from the action plan draft except the abolition of polygamy.

A consensus on adopting the code was reached after the then prime minister asked for royal arbitration. King Mohammed VI nominated a consultative commission to draft the code,¹⁵ consisting of ʿulamāʾ, lawyers and other experts in the human sciences, including three women. It was also fairly representative of the two camps that had clashed over the reforms.¹⁶ In his speech appointing the committee, the king stressed the limits of reform, as his father had done in 1992: ‘We cannot forbid what God has permitted, or make licit what He has proscribed …’.

It should be noted that in his 10 October 2003 speech to parliament, presenting the draft family code, the king accompanied the announcement of each new provision with a religious argument from the Qurʾan or hadith.¹⁷

The draft code was submitted to parliament according to normal legislative procedure and unanimously adopted by both chambers on 16 January 2003. It was gazetted on 4 February 2004 as Mudawwanat al-usra.

The new code represents an effort to reconcile three demands imposed by the socio-political context: the Islamic principles on the matter, the human rights values in international conventions signed and ratified by Morocco, and the contemporary realities and aspirations of Moroccan society.

This chapter seeks to bring out the religious arguments over the innovations in the new family code, especially those used in the ongoing Moroccan debates over the reform. Despite the consensus formed around the code, its provisions are still seen by some in Moroccan society as contrary to Islamic precepts, which makes for resistance to its proper implementation, whether among the citizens or within the judiciary.

2. The main innovations in the family code

The egalitarian philosophy behind the new family code may be seen in its various provisions. Thus, from the start, the code introduced the joint management of the family by both spouses; matrimonial guardianship was made optional for women who have reached legal majority; the legal marriage age was set at 18 for both sexes; both spouses were made equally responsible for the family; strict conditions were imposed on polygamy, to be assessed by the judge; divorce was made available to both spouses and placed under judicial control; and the wife could claim a share of the assets acquired during the marriage in case of divorce, in ways provided by law.

In what follows, we will, in particular, discuss those innovations that have been contested and debated.

a. The joint management of the family by both spouses

The old Mudawwana considered the husband to be the head of the family, to whom the wife owed obedience in return for maintenance. The new family code instead places the family under the joint responsibility of the spouses. Article 4 stipulates that ‘marriage is an act based on mutual consent with a view to establishing a lawful and lasting union between a man and a woman. Its goal is life in reciprocal fidelity, purity and the founding of a stable family under the management of both spouses, in accordance with the provisions of the present code.’

In an egalitarian perspective one might imagine the code introducing the corollary of this joint responsibility and obliging the wife to contribute to the maintenance of the family as the husband does. And yet, the retention in the code of the wife’s right to maintenance is rather in the spirit of Islamic jurisprudence, which considers it an inalienable right, and a valid ground, if unpaid, on which the wife can file for judicial divorce. The wife is, nevertheless, required to maintain her children, to the extent the father is unable to do so (Article 199).

Furthermore, the code institutes reciprocal and equal rights and duties for the spouses. They are identically mentioned in Article 51, which cites inter alia: ‘the wife’s assuming jointly with the husband the responsibility of managing household affairs and the protection of the children; consultation in decisions concerning the management of family affairs, children and family planning’,¹⁸ whereas in the old code, the duties of fidelity, obedience, running the household and treating one’s parents-in-law well fell only on the wife.

By making the family the joint responsibility of both spouses, the new code questions the notion of qiwāma as understood and interpreted in the classical exegetical tradition.

At the time of the debate, the qiwāma concept was not tackled directly, all the more so since the joint management of the family did not figure explicitly among the demands. This measure was introduced by the consultative commission, and was greeted by the women’s organisations. Nonetheless, the qiwāma was implicitly at issue in every proposal or demand for egalitarian reform. It must be admitted that all these demands questioned the idea of definitive male ‘authority’ and ‘advantage’ over women in all spheres of life, and hence of qiwāma as generally perceived by Islamic jurisprudence. This sense of qiwāma has served as the ground for legal norms on family and social life, and as justification for resistance to demands that were in no way opposed to the Islamic values of justice and equity.

b. The legal age of marriage

In the Maliki school there is no fixed minimum legal age for marriage. A distinction is drawn between the pubescent girl (bāligh, rāshida) and the prepubescent. Only the latter is subject to her legal guardian’s right to marry her by force (jabr).

On ʿAllal al-Fasi’s proposal, the personal status code broke with this legal tradition. The right to marry a young girl by force was abolished and the marriage age was set to 15, below which a marriage could not be validly concluded.¹⁹

The committee members did not refer to any religious textual argument for this choice. It was motivated solely by consideration of the interest (maṣlaḥa) of the young girl, which required the law-makers to put an end to the harmful effects of premature marriages. Still, taking the maṣlaḥa into consideration is a religious requirement, as ʿAllal al-Fasi explained.²⁰

Despite these restrictions in the Mudawwana, marriage before the legal age of 15 continued to be practised in Morocco, for reasons related to the ways and customs that made such marriages attractive, the absence of schooling for young girls in some backward parts of the country, and the precarious economic conditions that pushed families into marrying off their minor daughter to the first suitor.

The proposed raising of the marriage age for girls to 18 figured among the demands of women’s associations and the measures of the action plan; it was justified by the harmful impacts of early marriage on the health of mother and child, as well as on the required education of young girls and on the well-being of the family, and it was dictated by the need to adapt Moroccan legislation to the Convention on the Rights of the Child, which Morocco had ratified in June 1993 without reservation as to the definition of ‘the child’.

Ultimately, the new code set the legal age of marriage at 18 for both girls and boys, leaving judges the option of granting dispensation in special cases. Unlike the former code, which had underlined the fact that marriage below the age of 15 was formally prohibited, however, the new code remained silent on this point, leaving the door wide open to early marriages of little girls:

Article 19: Boys and girls of sound mind acquire the capacity to marry at 18 full Gregorian years of age.

Article 20: The family judge in charge of marriage may authorise the marriage of a boy and girl below the legal age of marriage stipulated in Article 19 supra, through a reasoned decision stating the interest and motives justifying the marriage (…)

It must be noted that the decision of the judge in this matter is not open to appeal. This shows the importance of the discretion granted to the judiciary over this crucial question.

Since the code entered into force, fieldwork in Morocco as well as statistics published by the Ministry of Justice show that the marriage of minors continues to be practised, especially in rural areas, even for those below 15.²¹ The dispensations from the marriage age granted by judges are based on subjective criteria, especially those related to the precarious socio-economic situations of families and the resistance of the traditional mindset.

Supporters of child marriages rely essentially on two arguments: the Qurʾanic verse that states the waiting time for divorced women, mentioning the case of those who have not yet menstruated (65:4); and the example of ʿAʾisha, the wife of the Prophet, who was proposed to at the age of 6 or 7 and joined the marital home at the age of 9.

According to those opposed to raising the marriage age for girls, the marriage of minors has been authorised by the consensus (ijmāʿ) of Muslim jurisconsults.²² The four Sunni schools, as well as the Zahiris and the various Shiʿi schools (Imamiyya, ʿIbadiyya and Zaydiyya) clearly approve of this kind of marriage.²³

The opponents of child marriage base their arguments on the advice of certain classical jurisconsults who opposed the marriage of prepubescent girls, including Ibn Shubruma (d. 761), the illustrious Kufan judge.²⁴ He categorically forbade a father from giving a prepubescent daughter in marriage, as her authorisation was absolutely required, and this she could not give before puberty. He refutes the argument that the Prophet married ʿAʾisha at the age of 6 by explaining that this is one of the matters specific to the messenger of God that cannot be applied generally to all Muslims.

Another argument for banning child marriage rests on the analogy (qiyās) with the unanimously accepted principle in Islamic jurisprudence of the personal autonomy of both males and females in managing their personal and financial affairs. If the person in question is a minor or lacks the requisite competence to manage her affairs, she may delegate the task to a representative, but only in everyday and urgent matters. But marriage is not such an urgent need for a minor that she needs to appoint someone to contract it for her, as Khamlichi explains.²⁵ He does not see verse 65:4 as entailing any recommendation that Muslims authorise child marriage. Nothing in this verse indicates that those who have not yet menstruated (allāʾī lam yaḥiḍna) are necessarily girls before puberty. In his view, it probably refers to women with some physical impairment that prevents them from menstruating, and they could well be over 30 years old.

Moreover, even supposing that the verse does speak of prepubescent divorcées, which did exist in society at the time of revelation, the Qurʾan’s indication of their waiting period should be seen simply as stating a fact, and by no means as legalising the marriage of girls before puberty. In support of this thesis Khamlichi cites another verse that says ‘Make trial of orphans until they reach the age of puberty (nikāḥ); if then ye find sound judgment in them, release their property to them …’ (4:6). This verse orders the guardians of orphans to hold back their inheritance until they become fit to marry and thus capable of managing their property. It follows that fitness to marry corresponds to civil and legal capacity. This confirms the prohibition against marrying girls below puberty, who have not attained the age of discernment that would allow them to make the decision of entering married life.

c. Matrimonial guardianship (wilāya)

The wilāya or matrimonial guardianship is considered a condition for the conclusion of marriage in Muslim law. There are two forms of wilāya, one entailing a right of coercion (wilāyat al-jabr) and one entailing a right to give consent.

The right to force a marriage is recognised in fiqh