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Declaration-Family Code

A Declaration by Shaykh Ibrahim Niasse, also lovingly called, Baye Niasse, following discussions between the Government and Muslim Religious Leaders on the Family Code (1971-1972) *June-04

 

In 1970 the Government of Senegal, at the time when Senghor was President and Abdou Diouf his Prime Minister, engaged with Muslim Religious Leaders, in negotiations that lasted about three years. The negotiations resulted in the adoption, reached by consensus, of a Family Code, the one still in force in the country today. About a year ago, an Islamically inspired Initiative Committee raised around this Code a debate, with the objective of adopting another code which would be more in conformity with the provisions of the Islamic Shari`ah Law, the initiators said. At some point during the debate, references were made to the past, accusing some religious leaders, now dead, of having been the 'accomplices' of the Senghor government in the adoption of the code, considered today to be contrary to the Shari`ah. The name of the late Al Hajj Ibrahim, called Baye Niasse by his followers and friends, was cited as one of these 'accomplices'.          

Determined to restore the truth, the heirs of the late religious leader dug out from their archives the recording of the statement that Baye Niasse made following discussions between Muslim Clergy and Government Authorities in 1972, to give his point of view about the Code and the reasons why (he) adhered to it.
In modern society where everywhere in the world Islamic values are more and more misrepresented and 'judged negatively', and where at the national level religious groups burst into public debate with the risk of calling into question the long time harmony that has existed between different religious groups in Senegal, the statement by Baye Niasse seems like, not only an element of rehabilitation of the beliefs that build the life of a Muslim, but also a religious tolerance teaching. Above all, the statement was made by an authority whose qualities are undeniable. The daily "Le Matin" publishes the whole document arising from first, the transcription, and then the translation of this statement. The document was received from the learned Imam Hassan Cissé of Médina Baye, grandson of Al Hajj Ibrahim Niasse.

"For three years, Muslim religious leaders and the Government have held discussions about the Family Code in order to develop a law which would conform to the Islamic Shari`ah. The government took the initiative and asked to meet and consult us (note from the author: myself and the other Muslim Religious Leaders), to ensure that the Code complies with the instructions of Islam all the more, as the majority of the Senegalese people are Muslims. Before getting to the heart of the matter, I would like, as an introduction, to clarify three fundamentals. The first is about the phrase "Al dinu li-llahi, wa al watanu li-l-jami" which means "The Religion belongs to Allah and the country belongs to the people." Indeed, religion is practiced by believers, be they Muslims or other, only to worship God. As for the country, it belongs to the whole nation, both believers and non-believers. Believers, as I said, include various groups. These groups of believers, and also non-believers, are all administered by the government and depend on it.
Second, Allah said in the Holy Qur`an: "Laa Ikraha Fi-d-din" which means "No constraint (compulsion) in religion". In Islam there is no constraint. We should not force even our own son to become a Muslim. I would like to tell a story dating from the time of the Prophet (pbuh). A man of "The Ansar people (of Medina)" with his wife, both close servants of the Prophet had a child who committed perjury and became unfaithful. His father was shocked and swore to kill him. He (the Prophet, pbuh) thereby received a revelation, and the verse stated "No constraint in religion". That's the story of this verse. Every person is free to be a Muslim, or something else.
Thirdly, I would like to refer to this phrase by the Prophet Muhammad (pbuh): "Fitna (calamity) is sleeping and Allah curses he who wakes him up". When we met with the government of Prime Minister Abdou Diouf two years ago, I had given them my viewpoint. I had told them that concerning temporal matters, the government was free to legislate. But concerning religion, especially in a Muslim country, no government has the right to legislate. I had said that Marriage, Divorce and Heritage are established by God in the Holy Qur`an, as are Prayer, Fasting, Pilgrimage... . I had also mentioned that Muslims had nothing else but their religion and that careful attention should be paid to the Code to ensure that it contains nothing in contradiction with the Shari`ah. It is Two Years now, that we have submitted our proposals and we have continued the discussions on every aspect.
At the end of our last meeting, in the final document presented to us, I have not seen to the best of my knowledge, serious differences with the Basic Precepts of Islam.

Marriage


Marriage in Islam is a contract between a man and a woman aimed at allowing the two partners to satisfy the pleasure of one another, with the consent of the woman's parents (father or close relative... ), payment of a dowry and the presence of witnesses. In Islam five conditions are required for a marriage: a husband, a wife, a guardian who concludes the marriage, the dowry and witnesses. There cannot be marriage without authorization of the woman's guardian or a relative in possession of all their mental capacities, or authorities' representatives (Imam Malik in his Muwatta). The presence of witnesses at a marriage is not a strict obligation but it helps to have people who can later certify the legitimacy of their offspring. Therefore, witnesses are important in the conclusion of a marriage. This justifies celebration of marriages in mosques and feasts (with man guests) . Thus, there can be many witnesses. Allah said in the Holy Qur`an : "Marry the number of women you deem appropriate: two, three or four. If you think you would be partial, then just take one wife or slaves" (Sura 4: Verse 3). A man may take two, three, even four wives, provided he can be fair and equitable to them. But it is obvious that it is difficult for a man, including the Prophet (pbuh) himself, to be fair in his feelings. When the Prophet was sharing his property, he was equitable to his wives. But when asked, "Who do you prefer?", he laid his hand on Aisha and replied "This one". And among men, who do you prefer? He replied "Her father Abu Bakr Sidiq" (note from the author: Aisha's father). Everyone knew that his wife Sayyidah Aisha "The Mother of Believers" was the one he preferred even if he always tried to be equitable in the sharing of his property. After this equitable sharing he said, talking to Allah: "I've shared all that belongs to me (his property). As for what belongs to you and which does not belong to me, I beg your PARDON" (note from the author: the Prophet (pbuh) considers that his property belongs to him, but not his heart which belongs to God).
To be allowed to marry four women, man must be sure to treat them equally, he must be able to pay the dowry, feed, and clothe them. Otherwise, one woman is enough. That's what the verse says (Sura Nisa'a, verse 3-5).

Marriage in the Jewish religion.


The Torah allows Jews to marry as may women as they want, without limitation, even a million. The Prophet Sulayman (pbuh) had 300 wives and 700 "taaras" (note from the author: 'a slave over whom the master has marital rights'). The Prophet Dawud had 100 wives. The Torah did not put a limit on the number of wives because it has placed the right of man above that of woman. The Gospel is the opposite of the Torah as it encourages more or less celibacy and recommends Monogamy. It places the right of woman above that of man. The Shari`ah of Islam fits in the middle; it is the best Shari`ah. It allows four wives and clearly defines the marital rights and obligations of man and woman. It's what Allah has prescribed for Marriage.
In a Muslim marriage, man's major obligations are: paying the dowry, feeding the wife, clothing her, housing her adequately, satisfying her sentimental needs, and establishing cordial relationships with her, that is living in harmony with her, without insulting or beating her. These obligations, which constitute the basis of the marital rights of woman, can be summarized as follows: be fed, clad, housed and satisfied sexually. If any of these rights is not respected, then the woman has the right to end the marriage contract and ask for divorce.
That's Islamic Marriage. Man has the right to marry four wives. This is undeniable. As for the woman, she may impose conditions to accept union with her lover. She can impose for instance, not to have a co-wife. Any man who agrees to marry a woman and not marry a second wife cannot marry another wife. The Prophet said: "Marriage conditions are those which deserve most to be respected." (Bukhari, Muslim). Of all your commitments, those concerning your wives must be the most respected. Whoever commits not to have a second wife must honor his commitment. He can get another wife only if he is divorced from the first wife. Personally, I will never accept such a condition from a woman neither will I require it from a man to allow him to marry my daughter.

Divorce.


Many cases can be considered. (1) Divorce as a result of one repudiation with possible re-union.' Allah said (Sura 65: verse 1): "If you repudiate your wives, allow some time for vacuity" (Iddat: prescribed waiting time). This divorce consists in repudiating the woman in purification after her menstruations and not followed by sexual intercourse, with the possibility to get her back before two witnesses. The husband has the right to take his wife again as long as the vacuity time (Iddat) is not finished. Allah said: "Husbands have the right, during the vacuity time, to get their wives back if they wish to reunite their marital links." (Sura 2: verse 228) (2) Divorce as a result of one repudiation without a possible re-union: if a husband repudiates his wife and does not intend to take her back, then the divorce is forever. In this case, "Bahda Zawji" is not required. It is the same for a second repudiation. (3) Divorce for the third time: when a woman is repudiated for a third time, this divorce is forever and husband and wife are separated forever. However, the woman can return only if after an official marriage with another person she is repudiated again. This is "Bahda Zawji". God said: "If he gets divorced from her a third time, she won't be licit, if she had not gotten married with someone else. If the latter repudiates her, both of them (note from the author: the woman and her first husband) commit no sin by living together again" (Sura II: verse 230).
God has prescribed decency in divorce. The repudiated spouse should be treated courteously and correctly. This is what Allah said to men about the repudiation of women: "Don't send them out of their homes and don't let them to go out..." (Sura 65: verse 1). He adds: "Make sure these women live with you according to your means" (Sura 65: 6). The repudiated woman keeps her food, lodging rights, etc... until the vacuity time is over (Iddat). If they are pregnant Allah said: "Cater for their needs until they give birth. If they breast feed give them a salary until weaning of the child, otherwise another woman shall breast feed the child" (Sura 65: 6). A husband who repudiates his wife cannot claim any property he had given her. Allah said: "If you want to replace a woman by another one and you had given the former a quinter (a thousand gold coins), don't take them back. What? Would you take them back to be unfair and commit a sin?" (Sura 'The Woman', [4] verse 20). Divorce should be decent under every circumstance. The repudiated wife shall be treated courteously and respectfully.
Those are very briefly the provisions of the Islamic Shari`ah concerning divorce. The Prophet (pbuh) said: "Divorce is what Allah hates most in what he has made licit". The Prophet (pbuh) has repudiated Absat. He made peace with Saudah and he has also observed the "ila" (oath to separate from one's wives for some time for disciplinary measures). He repudiated Absat and Saudah but Allah requested him to take the latter back.
When a woman feels abandoned by her husband, both can choose to find an agreement. The Prophet (pbuh) let his wives choose, whether to stay with him or leave him. When Saudah felt that the Prophet (pbuh) wanted to repudiate her, she requested to remain in the family but accepted to leave her turn to Sayyidah Aishah. That's the divorce of the Prophet. Divorce breaks the woman's HEART. That's why it is recommended to the husband to leave part of his property to the repudiated woman according to his means. Allah said: "He who is wealthy shall spend his fortune and he who has limited means shall spend according to what Allah has given him" (Sura 65 verse 7).
Man has the right to declare the divorce. No one else but the husband can pronounce the dissolution of marriage. The Prophet (pbuh) said: "It is he who lifts the leg who has the right to declare the divorce" (Ibn Mayu and Darakami). The right to dissolve a marriage stands permanently in the following conditions:

1. One partner observes that the other partner is sick and fears to be contaminated. He can divorce, and this is applicable when one of the partners gets mad (mentally ill);
2. The husband leaves home and no one knows where he is, and he has left no provisions for his family and has not left them with anyone either. It is her right to refer to the judge and ask for divorce. Upon reception of her request the judge will ask her to wait for four years. If the husband comes back, the marriage is not dissolved; but if the husband's absence is certified by witnesses, then the judge declares the divorce;
3. When the husband is in jail and sentenced for life or for twenty years or more, the wife has the right to ask for divorce.
In summary (and let me repeat, that the man who decides to divorce shall proceed in compliance with the Sunnah) there are three types of divorce:

1. Repudiation with possible re-union;
2. Repudiation with no possibility of re-union, but the man has pronounced on (only) one occasion, the Word divorce.
In these two cases, the man can remarry his wife without resorting to "Bahda-Zauji".
3. Repudiation for the third time, either on a similar occasion or in different situations. For example; the husband says, "I repudiate you" or as it is said in Wolof "fase nala, fase mu dog" (I repudiate you for ever) or "may nala sa baat" translated literally by "I give you your neck back". In this case the divorce is forever. The husband can take his wife back only if the latter gets married a second time and is repudiated by the second husband.

There is "Muhali". It was mentioned by the Prophet who said: "May Allah curse he who wants to make licit (note from the author: meaning the muhali), and the person in whose favor they are trying to make it licit". There is "Muhali" when someone, after having repudiated his wife forever, wants to take her back. He agrees with a third person, so that the latter marries his wife and repudiates her later (to allow the first husband to take his wife back). That's what they call in Wolof "Baara Yegoo". May God curse the traitor and the beneficiary. Let's now talk about heritage.

Heritage


Sharing of heritage, depending on the various possible cases, is prescribed as follows (Sura 4):
1. When the deceased has no children, but his father as first-degree ascendant is still alive, it is this father who inherits all his property;
2. An only son inherits all the property of his father in case of death of the father.
These are cases of global succession share. In case a man dies leaving behind a wife and children, the heritage is distributed into 8 shares:
* 1/8 goes to the wife. If the deceased has only one wife, the latter receives all this 1/8. But if the deceased has many wives, this 1/8 is shared between all of them;
* What remains, i.e. 1/7 is shared among the children according to a principle of 'a man receiving the double of the share of woman'. That's the sharing of Shari`ah. It is an equitable sharing because Woman in Islam is considered as well off; she does not have any financial obligation in the household. She is completely supported by the husband who must feed, clothe, house her and take care of her littlest needs. It is said that if the husband does not respect any of these obligations the woman can divorce. Woman's needs are inferior to those of Man who supports all the family expenses, including payment of dowry for marriage. That's why in Muslim Heritage man receives two shares and woman one.
If a deceased has no children, no wife, no father, no mother, it is his parents (in the large sense) who inherit 1/3 of his property and the rest goes to the Muslim government.
Important note: in Islam only legitimate children inherit; an illegitimate child does not inherit from his father and vice versa. Also, it is worth mentioning that among the Jews only the eldest child inherits everything while the girl receives only the dowry. However, the Gospel does not discuss the issue of succession.

Disinheritance


There are seven cases of disinheritance or non-succession:

1. The stillborn child who has not shown any sign of life at birth is not entitled to heritage, and no one can inherit from him because transmission of property is based on life followed by death;
2. He whose death prior to the heir's is skeptical (note from the author: this situation implies that the deceased and the heir died in conditions which do not permit to determine exactly who died first);
3. The child rejected by his father after a "liane". A "liane" occurs when a man accuses his wife of adultery and sues her. If the husband cannot prove his accusations, the judge will ask him to swear using the formula "I testify before God that this pregnancy is illegitimate". The formula is repeated four times, and the fifth time he calls God's curse on himself if he is not telling the truth. After that, if the woman continues to deny, she will also swear. After this confrontation, the judge pronounces the irrevocable divorce and the child cannot inherit from his father and vice versa.
4. The deceased and the heir do not belong to the same religious confession: there is no heritage in case of difference of religion. A non-Muslim is not entitled to the heritage of a Muslim and vice versa;
5. A slave, or a woman slave who has given a child to her master, are not entitled to the heritage of this master and no one can inherit from them either;
6. The adulterine child does not inherit his father and vice versa. Heredity relations exist only between this child and his mother;
7. A murderer is not entitled to the heritage of his victim. He who kills his father for instance cannot inherit from him.

The Shari`ah prescribes that an adulterine child cannot inherit. But a father who supports his illegitimate child provider of services, can leave him part of his property. Otherwise when the heritage is being shared this child can receive some property (note from the author: in this case the services rendered by this illegitimate child to his father are taken into account). The Qur`an said: "If close relatives who are not entitled to heritage are present during the sharing, they must receive some property and be addressed politely".
The Code also deals with engagement. This stage shall not exceed one year. Once the engagement is confirmed, marriage shall be celebrated quickly. It is for fear of God that we must preserve relations between man and woman. But we have seen engagements last even 7 years without the engaged couple behaving irresponsibly.
The development above represents the points discussed with the government. As I said, they are our recommendations. The authorities have integrated them as we wished. The truth is that we Muslims constitute the majority in this country. But we are governed by the government and the latter is responsible for the whole nation. The country belongs to all of us: Muslims, Catholic, Protestant, Jews, Atheists, and others. Anyone who lives in the country has rights. In the Code there are other prescriptions for non-Muslims. This could mislead many people. These prescriptions were established according to the rights of these non-Muslims. But we specified, in the introduction to these prescriptions, that they did not concern Muslims.
As for prescriptions concerning Muslims, we were told that we could find them on such and such page. For cases for which provision was not made in the Code, we were assured that if they occurred, they would be addressed according to the Islamic Shari`ah (note from the author: if the people concerned are Muslims of course).
Those are the conclusions we reached with the government during our last meeting. Nothing opposite to Shari`ah has appeared basically. There were many religious leaders, learned people, opinion leaders and talibes as well. When the passage was read in full and I noted that it was in conformity with what I wished, I gave my consent. As to the question of establishing by all means "fitna" (note from the author: situation of tension and conflict) the Prophet (pbuh) said that "fitna" is "a giant who is asleep" and Allah curses he who wakes him up.
Someone came to see me in my room in Dakar and told me that Senghor is trying to alter the religion of the Prophet (pbuh) and that he, my visitor, was prepared to give his life. He assured me that he supports us (Muslim Religious Leaders) under any circumstances. I told him that he did not know where the religion of the Prophet Muhammad (pbuh) originates from to reach this conclusion. Therefore those who learned and knew it are in a better position to defend it.
We discussed with them (note from the author: government authorities). We cannot oblige them to do anything. And those who govern us do not want to be in conflict with us either. That's why they consult with us. We too we do not want to be in conflict with them. We will never accept a Code that is contrary to the Shari`ah (note form the author: such a contradiction would have provoked a conflict). They too would never like to do something that would lead us to be in conflict with them. Trust us.

As Salaamu Alaykum 

Al Hamdu li-llah.