Interspousal Torts in Islamic Law: A Study of Marital Harm and Judicial Divorce in the Mālikī madhhab

Abstract

This dissertation explores how Muslim jurists traditionally defined harm (ḍarar) in marriage—particularly, the type of harm that constitutes a tort and is grounds for judicial divorce —and identifies some of the ways judges resolved cases in which the criteria for harm were established. As it stands, most discussions on marital harm in the Islamic legal tradition focus on a husband’s capacity to physically discipline his wife. While this literature offers valuable perspectives as to how physical violence can be mitigated, it elaborates only on a subset of torts and indirectly portrays an image in which Muslim jurists are exclusively concerned with material injuries. To demonstrate the extent to which jurists discussed both material and immaterial forms of injury like emotional and sexual harm, I juxtapose legal discourse from two major schools of law, the Mālikī and Ḥanafī, through a close reading of texts composed by authoritative voices in each school, including Muḥammad b. Rushd, Khalīl b. Isḥāq, ʿAlāʾ al-Dīn al-Kāsānī, and Muḥammad al-Sarakhsī.

This study, which sets out to establish a comprehensive and more expansive definition for ḍarar as it was particularly used by the Mālikīs, highlights the sundry ways in which judicial divorce was not only conceivable but was actively facilitated for women seeking to leave harmful relationships. The Mālikīs, in contradistinction to the Ḥanafīs, expanded opportunities for judicial divorce and, accordingly, a woman’s ability to obtain a marital separation. They held that the establishment of a husband’s tortious conduct necessitated his wife’s right to leave the marriage. Mālikī jurists, moreover, broadly defined harm in light of normative standards, thus offering a versatile concept that can adapt to a society’s customs. In particular, they defined the occurrence of a marital tort when a wife’s rights, explicated by customary standards, were infringed upon. This substantiates a connection between harm and a woman’s rights in Muslim legal discourse, indicating that a key effort to alleviating harm to a woman through a religiously authoritative framework can be done by redefining her rights in law and society.