Daily Times

A hospital in Zimbabwe, as reported by Transparency International, has been charging poor women $ five every time they screamed during childbirth, under the pretext of them having raised a ‘false alarm’!

In May, the Daily Mail, UK reported: “Two men who wanted to prove that their wives were ‘exaggerating’ the pain of childbirth underwent a labour simulation meant to mimic contractions experienced by women, with hilarious results. In celebration of Mother’s Day, these men from Kensington Church based in Troy, Michigan, contacted gynaecologist Dr Julie Masters and filmed their experience.” The results of this simulation are available on the internet.

This was neither the first attempt of its sort nor will it be the last. The ‘superior sex’ has often ridiculed the agony and suffering undergone by the ‘weaker sex’, totally ignorant of the fact what magnitude of pain has to be endured for the miracle of birth. Even as science has progressed and more options of pain relief and medications become available, still a vast majority of women have no access to them or even to basic delivery/labour facilities or any ante-natal or post-natal care. A 2008 study on maternal mortality rates during childbirth placed the UK at number 23 in the global league table, India at 127, Bangladesh at 138, Pakistan at 142, with Afghanistan at the bottom at 181 and Italy at the top.

The Holy Quran gives an exalted status to a mother: “And We have enjoined upon man, to his parents, good treatment. His mother carried him with hardship and gave birth to him with hardship, and his gestation and weaning [period] is 30 months.” The Prophet (PBUH) is reported as saying: “Do good to and serve your mother, then your mother, then your father, then the near relatives and then those who come after them.” The Quran was revealed during this holy month Ramzan and it says: “The month of Ramadhan [is that] in which was revealed the Qur’an, a guidance, for the people and clear proofs of guidance and criterion (between right and wrong)” 2:185. It is also elaborated that it is a book that has been simplified so that it is easy to understand. Many verses state that the teachings of Allah are clear, all truth has been expounded, so that it may be followed by those who surrender themselves completely to His will.

Islam gives women rights undreamt of before its advent, and even now the only reason we are denied these rights is because of the other half who in order to claim and impose their self-perceived superiority impose their will on us by interpreting verses that are clear and need no interpretation. There is no embargo on women to marry in Islam, even widows and divorced ones. In fact, all of the Prophet’s (PBUH) wives were either widows or divorced, with the exception of Hazrat Ayesha. Common sense, which by the way is not all that common, says that the concept of iddat (a mandatory waiting period after dissolution of marriage either through death or divorce) is so that the paternity of the conceived child, if any, can be determined, thus encouraging women to remarry. Surah Nisa gives a list of women who men are not allowed to marry under any circumstance, who fall within the ‘prohibited degree’: “Prohibited to you [for marriage] are your mothers, your daughters, your sisters, your father’s sisters, your mother’s sisters, your brother’s daughters, your sister’s daughters, your [milk] mothers who nursed you, your sisters through nursing, your wives’ mothers, and your stepdaughters under your guardianship [born] of your wives unto whom you have gone in. But if you have not gone in unto them, there is no sin upon you. And [also prohibited are] the wives of your sons who are from your [own] loins, and that you take [in marriage] two sisters simultaneously, except for what has already occurred. Indeed, Allah is Ever-Forgiving and Merciful” (4:23).

Our society and our courts are eager to interpret the words ‘prohibited degree’ with what I personally feel is without reference to this verse. A woman who has remarried after the death of her husband or after divorce is denied custody of the children whom she bore, nursed and raised, with unimaginable pain, on the grounds that she has married a ‘stranger’ who does not ‘fall within the prohibited degree’ to her children. A simple glance at this verse would show that stepdaughters under a man’s guardianship who have been born to his wife with whom he has conjugal relations fall within the ‘prohibited degree’, thus making him a ‘mehram’. And the fallacy of stating that a woman has married a stranger is frustrating to say the least. How many women would, without a gun being held to their heads, marry the brother of the very man who divorced them or whom they divorced, though it may be a great idea for revenge! So, the only relation whom a woman can lawfully marry, who would not be barred by being prohibited to her, and would also fall within the prohibited degree to her children, would be her former husband’s brother!

There is a plethora of case law by the superior courts on interpretation of statutes. There is elaborate discussion on how the daily mundane laws that we encounter in our lives should be interpreted. The basic guiding principle in such cases is that the ‘rules of interpretation do not permit to restrict or enlarge the meaning of express words used in the statute’ and ‘while interpreting statutes, it was presumed that the legislature chose its words carefully, therefore, if a word or phrase had been added somewhere, such addition was not to be deemed redundant. Conversely, if a word or phrase had been left out somewhere, such omission was not be deemed inconsequential.’ It has been held that ‘the cardinal principle of construction of statute is that ordinarily the courts are to interpret the statute to discover the intent of the legislature giving full effect to it in its letter and spirit. It has no powers to legislate by adding to a statute what is expressly omitted therefrom or to delete what is expressly mentioned therein. The principle, which is consistently followed, is not open to any debate.’

The point I am trying to make is that if a court while interpreting an ordinary man-made law cannot add to it or delete from it, how can it add to or delete from the Divine law? If Allah wanted women to be deprived of custody of their own flesh and blood on the mere fact of remarriage, surely He would have stipulated it in express words in His Holy Book, which has clear instructions and guidance? If this was indeed the case, maybe He would have forbidden women to remarry? Why would He, in clear unambiguous terms state that a woman’s second husband was a guardian to his stepdaughters? Why would marriage with a stepdaughter expressly born of wives with whom cohabitation had taken place be prohibited? How can a man’s interpretation, in clear negation of express words of the Holy Book, override the Divine legislature? Punishing women by taking away their children is a sin. No man can ever bear the excruciating pain of childbirth nor was he ever bestowed this ‘superiority’ by God; it is ours alone. Add, delete, interpret; one day we will all be judged.

The writer is an advocate of the High Court