The Question of Divorce and the Mandate of the Jurist Over the Unwilling Husband in Lebanese Muslim Shiʿi Jurisprudence: A Legal Reform?

Abstract

AbstractThis article examines Muḥammad Mahdī Shams al-Dīn’s unstudied work, Fasād al-ʿalāqa al-zawjiyya: Wilāyat al-ḥākim al-sharʿī. Shams al-Dīn, who at the time was the head of the Supreme Islamic Shiʿi Council (SISC) and oversaw the religious courts in Lebanon dealing with personal status laws (marriage, divorce, child custody, inheritance laws), witnessed at firsthand women’s suffering, loss of rights, and the long court battles when a husband refused to divorce. The injustices committed against women by some men prompted Shams al-Dīn to find a juristic basis for curtailing men’s power and for defending women’s rights to custody, maintenance, and the deferred bridal gift. In the aforementioned work, Shams al-Dīn examines the scope and limits of the jurist’s authority, and whether such authority allows the jurist to execute divorce without the husband’s approval. His understanding of the concept of the jurist’s authority over the unwilling husband, coupled with his theoretical considerations on marital relations, has wider implications for Lebanese Shiʿi Muslim women and Jaʿfarī religious courts in Lebanon. Despite the profound nature of his reforms, Shams al-Dīn’s work is problematic, in that he leaves the husband’s unilateral right to divorce (even if provisionally) untouched and falls short of finding the theoretical basis for a contract in which equality between the spouses is built-in (even though it is possible in Shiʿi law).