The Juridical and Legal Status of Women's Housework (book)
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| Book Information | |
|---|---|
| Author | Masoumeh Nikoukhosal |
| Style | Analytical |
| Language | Persian |
| Volumes | 1 |
| Pages | 120 |
| اطلاعات نشر | |
| Publisher | Hajar |
- Abstract
The Juridical and Legal Status of Women's Housework is a Persian-language book that examines women's work in the home from the perspectives of jurisprudence and law. The author, Masoumeh Nikoukhosal, considers the legal protections for women's housework to be insufficient and seeks to prove that women's housework, under certain conditions, merits payment for similar work (*ujrat al-mithl*). Using all forms of evidence (Quranic verses, narrations, rational argument, and consensus), the author argues that *ujrat al-mithl*, similar to the chapters on *ja'alah* (reward for a specific task) and *ijarah* (hire), is also applicable to a woman's housework, and all the conditions outlined in those chapters are also met in the case of women's housework.
Regarding the scope of establishing *ujrat al-mithl* for women's housework, the author concludes that in cases where the Lawgiver has commanded the wife to seek her husband's permission or has ordered her to be compliant (*tamkin*) with her husband, the wife cannot demand *ujrat al-mithl*, because these matters are obligatory for her. However, any work that the wife performs at the explicit or implicit command or with the permission of the husband, without the intention of it being gratuitous, and for which there is a customary wage, falls within the scope of establishing *ujrat al-mithl*.
Structure of the Book
The book *The Juridical and Legal Status of Women's Housework* by Masoumeh Nikoukhosal, on the topic of women's housework from the perspective of jurisprudence and law, is organized in 120 pages. The book is in Persian and was published by Hajar Publications. The book has an introduction and three chapters, and concludes with a summary and a bibliography.
The first chapter examines the jurisprudential and legal ruling on women's housework in two sections. The first section discusses topics such as the existing legal articles regarding women's housework, the evolution of legal support for *ujrat al-mithl* for this type of work, and also examines possibilities regarding its nature. The second section examines the views of Shia jurists on the declaratory ruling (*hukm wad'i*) and the prescriptive ruling (*hukm taklifi*) of women's housework.
The second chapter examines the evidence for establishing *ujrat al-mithl* for women's housework under two headings: rational evidence and jurisprudential rules. Among the rational evidence mentioned by the author are the verse of transgression, narrations such as the narration on the sanctity of a Muslim's property and the narration of no harm, consensus, and reason. Also, in the jurisprudential rules, rules such as the rule of the sanctity of a Muslim's property, the rule of no harm, the rule of deception, and the rule of destruction are discussed.
In the third chapter, titled "The Scope of Establishing Ujrat al-Mithl," the author examines the scope of establishing *ujrat al-mithl* based on the primary rule in human relations, verses such as the verse of guardianship and the verse of degree, and also narrations such as the narration of a wife's obedience to her husband in what is right, the necessity of seeking permission, and the necessity of compliance with the husband.
Women's Housework in Iranian Law
Citing the enacted laws of the Islamic Republic of Iran, the author examines women's housework from the perspective of two legal articles in Iranian law.
Ujrat al-Mithl for Women's Housework
The author considers the "addendum to Article 336 of the Family Protection Law" as the reference for establishing *ujrat al-mithl* for a woman's housework in her husband's home. According to her, this law stipulates four conditions for the entitlement to *ujrat al-mithl*: the work performed by the wife not being a religious duty, the work having a customary wage, the intention to comply with the husband's command, and the wife not having the intention of it being gratuitous (pp. 15-27).
The author claims that there is no adducible jurisprudential reason to prove the obligation of women's housework and considers the cited narration, with reasons, to be insufficient to prove its obligation. Therefore, when the obligation of a woman's housework is not proven, she will be entitled to receive a wage (p. 16). She considers a woman's work to have a customary wage and believes that if society's custom considers a woman's work in the home to be gratuitous, it is rooted in our ignorance of the non-obligation of women's work in the home (p. 20).
The author considers the husband's expectation for the wife to perform housework as the best indication of the husband being the commander, thus she considers the wife's work as compliance with the husband's command (p. 22). Based on the opinions of religious authorities such as Mohammad-Taqi Bahjat, Sayyid Ali al-Sistani, and Lotfollah Safi Golpaygani, as well as legal articles, she considers the principle to be the absence of gratuitous intention and responds to the objections raised against it (pp. 25-27).
Obligation to Pay Nahla from Husband to Wife during Divorce
According to "Clause B of the single article of the Law Amending Regulations Related to Divorce," if *ujrat al-mithl* for the woman's housework is not proven, the husband is obliged to pay *nahla* (a gift) to the wife (p. 27). The author raises three possibilities about the nature of *nahla*: 1) having the same nature as dower and provision (*mata'*) (pp. 29-32); 2) having the same nature as a gift (*hibah*) (pp. 32-33); 3) being an independent legal institution that defends women's rights against exploitation by men (pp. 33-34). After examining the evidence, the author rejects the first two possibilities. In her opinion, the conditions and characteristics of *nahla* are different from the conditions and characteristics of dower and gift, because, for example, a gift requires offer and acceptance, whereas according to the legal clause, *nahla* does not. The author then states that the non-acceptance of the first two possibilities means that *nahla* has no jurisprudential basis, and thus its legitimacy stems from a governmental ruling (pp. 27-34).
Ultimately, the author does not consider the enacted laws regarding women's housework to be sufficient, because in the matter of *ujrat al-mithl*, the woman is viewed as a hired laborer, and it presents challenges for the woman, such as proving the absence of gratuitous intention. As for *nahla*, it is granted to the woman after a divorce request, failure to prove *ujrat al-mithl*, and the establishment of the impossibility of reconciliation, and only if the husband has sufficient financial means (p. 34).
Jurisprudential Rulings on Women's Housework
In the remainder of the first chapter, the author examines the rulings on women's housework from the perspective of jurists in two parts: its declaratory ruling and its prescriptive ruling.
Declaratory Ruling on Women's Housework
The author says that in jurisprudential discussion, the most relevant chapters of fiqh regarding women's housework are the chapters on *ja'alah* and *ijarah*. To establish *ujrat al-mithl* for women's housework, the necessity or non-necessity of three components is important from the perspective of jurists; that is, whether a jurist considers each of these components necessary or not affects the establishment or non-establishment of *ujrat al-mithl* for women's housework:
- The existence of a command from the commander (husband): Jurists consider the existence of a command necessary to establish *ujrat al-mithl*. Some consider implicit permission and command to be on par with an explicit command. Therefore, work that a woman performs with the husband's explicit command, implicit command, or permission is entitled to *ujrat al-mithl*. Of course, tasks like artistic works, cooking several types of food for show, etc., are not entitled to *ujrat al-mithl*.
- The existence of an intention for a wage from the agent: Many jurists rule that a wage is necessary in a situation where the agent intended a wage, but the commander intended it to be gratuitous. Even Sayyid Kazim Tabatabai Yazdi considers the agent who performs the work with neither the intention of a wage nor a gratuitous intention to be like an agent who intended a wage. Therefore, the wife's entitlement to a wage is established where she intended a wage without any contrary indication.
- A customary wage for the work performed: This means that it is customary to receive a wage for it. Consequently, if a person, at the permission or explicit or implicit request of another, performs a task for them that customarily has a wage, as long as the agent did not have a gratuitous intention, they are entitled to *ujrat al-mithl* (pp. 35-44).
Prescriptive Ruling on Women's Housework
According to the author's report, those who argue for the non-obligation of women's housework have stated their view in three ways: 1) The non-applicability of *nushuz* (disobedience) to the abandonment of housework (when it is not *nushuz*, it is not obligatory, because *nushuz* results from abandoning obligations) 2) The husband's lack of entitlement to compel the wife to do housework (a husband can only command his wife in obligatory matters) 3) Explicitly stating the non-obligation of women's housework (pp. 44-47). In contrast, those who argue for the obligation of women's housework appeal to custom (*'urf*) and believe that a woman's work in the house is an implicit condition of the marriage contract, and adherence to it is obligatory (p. 48).
Evidence for Establishing Ujrat al-Mithl for Women's Housework
The author has cited several verses, narrations, consensus, reason, and jurisprudential rules to establish *ujrat al-mithl* for women's housework.
Verses cited to establish *Ujrat al-Mithl*
- Quran 2:194: "So whoever has assaulted you, then assault him in the same way that he has assaulted you." The author, by examining the vocabulary of the verse, states that the destruction of labor is an instance of transgression and must be compensated with its customary equivalent. That is, in the matter at hand, where the husband has commanded the wife to do a task that customarily has a wage, he has caused the destruction of her labor and must compensate it with its customary equivalent, and the customary equivalent is *ujrat al-mithl* (pp. 51-57). The author then states two objections to the said argument and responds to them (57-60).
- Quran 42:40: "And the recompense for an evil is an evil like it." The first "evil" refers to an unlawful act, but the second "evil" refers to a lawful act in response to the first unlawful act. If the first unlawful act is the destruction of a person's benefits by not paying their wage, it must be compensated with its equivalent, i.e., its price, which is *ujrat al-mithl*. The wife, in obedience to her husband and without gratuitous intention, has performed tasks that customarily have a wage, and the husband, by not paying, has committed an "evil" and must compensate by paying *ujrat al-mithl* (pp. 60-62).
- Quran 16:126: "And if you punish, punish with an equivalent of that with which you were harmed." Not paying *ujrat al-mithl* is an injustice, and this injustice must be compensated by paying *ujrat al-mithl* (p. 62).
The author then proceeds to examine several narrations to prove *ujrat al-mithl* for women's housework. The first narration is from the Prophet (s), which states that the sanctity of a believer's property is like the sanctity of his blood.[1] According to the author's statement, just as one of the levels of respecting blood is that it not be wasted and that it must be compensated, one of the levels of respecting property is the necessity of compensating for destroyed property by paying its equivalent or its price. Therefore, regarding a woman's work in her husband's house, it can be said that this type of work is considered her property and has sanctity, so if destroyed, it must be compensated (63-64). The author also cites other narrations such as "The property of a person is not permissible except with his willing consent,"[2] "The deceived person may have recourse against the one who deceived him,"[3] and "There should be neither harming nor reciprocating harm against a believer"[4] to prove *ujrat al-mithl* for women's housework (pp. 64-69).
The author also states that Imami jurists have a consensus on the recourse of the harmed and deceived person to the one who caused the harm for compensation. Of course, according to her, the consensus here is not a fundamental consensus (*ijma' usuli*) and cannot be invoked (p. 69). In the author's belief, from a rational perspective, the negation of harm and injury is one of the rational imperatives, according to which the one who causes harm is obliged to compensate for the damage resulting from the harm (p. 70).
At the end of the second chapter, the author mentions four jurisprudential rules to prove *ujrat al-mithl* for women's housework: the rule of the sanctity of a Muslim's property, the rule of no harm, the rule of deception, and the rule of destruction (pp. 71-73).
The Scope of Establishing Ujrat al-Mithl for Women's Housework
The author of the book *The Juridical and Legal Status of Women's Housework* dedicates the third chapter to determining the scope of establishing *ujrat al-mithl*, and proceeds with the discussion based on jurisprudential rules, verses, and narrations.
Citing the Rule of Dominion over Oneself
The author considers the primary rule in human relations, or as jurists express it, the rule of dominion over oneself, as the first point for determining the scope of establishing *ujrat al-mithl*. According to this rule, no one has authority over another, and no one has the right to dispose of the affairs of life and property of another. The author presents evidence to prove this rule; accordingly, the husband has no authority over the wife, and the scope of establishing *ujrat al-mithl* includes all the work that the wife has done in obedience to her husband's command and with the intention of it not being gratuitous (pp. 75-80).
Citing Quranic Verses
The author then refers to verses that indicate the man's authority over the woman to determine the scope of establishing *ujrat al-mithl*.
The first verse discussed is Quran 4:34. After a detailed discussion on the occasion of revelation, context, and meaning of the verse, the author concludes that the scope of establishing *ujrat al-mithl* cannot be determined by this verse, and the verse is in the position of establishing the husband's headship over the wife. The only point that can be derived in the matter at hand is that the scope of *ujrat al-mithl* is not unlimited (pp. 80-88).
The second verse is Quran 2:228 (the verse of degree). The author first presents five possibilities regarding the "degree" and then, after rejecting four possibilities, concludes that the meaning of "degree" is the superiority of men in rights, meaning men have more rights because they have more duties than women. The author does not consider this verse to be adducible for determining the scope of establishing *ujrat al-mithl* (pp. 88-92).
Citing Narrations
The discussion of narrations is the third point raised by the author to determine the scope of establishing *ujrat al-mithl* for women's housework. The author does not consider narrations that encourage the wife to obey her husband or address the husband as the guardian of women to be adducible for determining the scope of *ujrat al-mithl* (pp. 92-93). She mentions a narration where the Prophet, when taking the pledge of allegiance from women, made them confess that they would not disobey their husbands in what is right.[5] While confirming this narration in terms of its chain and indication, the author concludes that based on this narration, the scope of obedience to the husband, and consequently the non-establishment of *ujrat al-mithl*, can be limited to seeking permission and compliance (*tamkin*) (pp. 92-95). The author then presents narrations indicating the necessity of seeking the husband's permission and the necessity of compliance with the husband's right to sexual enjoyment, and claims that the scope of establishing *ujrat al-mithl* will not include cases where obedience to the husband was obligatory (pp. 95-99).
Footnotes
References
- Al-Ahsa'i, Muhammad b. 'Ali b. Abi Jumhur. *'Awali al-La'ali al-'Aziziyya*. Qom: Dar Sayyid al-Shuhada' li-l-Nashr, 1405 AH.
- Al-Hurr al-'Amili, Muhammad b. al-Hasan. *Wasa'il al-Shi'a*. Qom: Mu'assasat Al al-Bayt, 1409 AH.
- Al-Saduq, Muhammad b. 'Ali. *Man la Yahduruh al-Faqih*. Qom: Intisharat-i Islami, 1414 AH.
- Al-Kulayni, Muhammad b. Ya'qub. *Al-Kafi*. Tehran: Dar al-Kutub al-Islamiyya, 1407 AH.
- Al-Majlisi, Muhammad Baqir. *Bihar al-Anwar*. Beirut: Mu'assasat al-Tab' wa-l-Nashr, 1410 AH.
- Musavi Bujnurdi, Sayyid Muhammad. *Al-Qawa'id al-Fiqhiyya*. Qom: Isma'iliyan, 1371 SH.