ANALYSIS: Marriage Lite —Rafia Zakaria
The existence of “misyar” marriages and the fact that they are being advertised on websites similar to western ones proposing sexual dalliances exposes the hollowness of the idea that prohibition eliminates the desire for promiscuity
The Guardian report published last Sunday regarding the prevalence of “misyar” marriage in Saudi Arabia has generated much hubbub in the Muslim world. There are few religiously-sanctioned occasions for discussing issues concerning sexuality but it seems that in addressing this above topic the Saudis and their Wahhabi fans around the world have found one.
In simple terms, a misyar marriage is the Wahhabi (we will use the term Sunni from here on) counterpart of the Shi’a “mutaa” marriage. The “misyar” or “traveller’s” nikah is carried out through normal Sunni Muslim contractual procedures and involves a knowing waiver of certain rights predominantly by the wife.
Under misyar, the husband and wife retain their homes and arrange for visits for a certain number of nights. In terms of waiving rights, the husband gives up his right to unabated sexual access (otherwise assumed in Saudi law) and housekeeping (since the wife does not live with him).
The wife, predictably, gives up much more, including her right to equal attentions of the husband (in case of polygamy), her right to maintenance or “nafaqah” and housing. In the event of children born to the union, custody goes to the father or his family after age seven.
Misyar is routinely presented as a pragmatic solution to sate the sexual appetites of men in a society where sexual promiscuity is strictly prohibited and prosecuted through hadd punishments. The argument in favour of misyar normally proceeds thus: misyar marriage allows those who are unable to provide a home or support a wife full-time an opportunity for female companionship, broadly interpreted.
The female beneficiaries of this “marriage lite” are supposedly the hapless spinsters, divorcees and other marginalised women who otherwise have no hope of male attention or companionship. Through this arrangement, they too can have a shot at marriage, though without most of the rights. Misyar thus, while socially unpalatable to Saudi jurisprudence in its capacity to showcase the centrality of male sexual appetites, is presented as the low-budget alternative to regular marriage meant, assumedly, only for virginal brides and rich men.
Misyar then is marriage for discarded women and unstable men, neither of which would have a shot at regular marriage in Saudi and perhaps also other parts of the Muslim world. Instead of agonising over the gender iniquities of a system that treats widows and divorcees as unworthy of marriages where their rights and human dignity are respected, a “lower” form of marriage has been invented to allow them a chance at having some male companionship. The sociological aspects of the fact that the women continue to be marginalised and treated as unworthy are left unquestioned.
Further arguments for misyar marriages focus on their legal defensibility. Shaikh Yusuf Al Qaradawi, quoted in the Guardian report, instructs Muslims to look at the marriage as a “legal relationship between a man and a woman”. The Sheikh requests that misyar marriage be evaluated on the grounds that it is a contract between a man and a woman that is sanctioned by religion in that the limited liabilities and duties of both parties are adequately stated by both and hence known and apparent to both.
This argument is based on the legal premise that when conditions of a contract are explicit and consented to by both parties and within the parameters set by theology the ensuing contract is rendered legitimate and binding.
Yet the irony of this argument is that it denies the social facts that have led to the creation and permission for such a contract. The legal argument thus makes no mention of the completely unequal bargaining power of the two parties and the fact that the women have in actuality little power to insist on any condition being stipulated in the contract.
The fact that a woman acquiesces to a marriage that avowedly and explicitly provides her fewer rights than those she would be entitled to otherwise is a testament to her inferior bargaining power both as a contracting party and as a citizen within a patriarchal society. To argue thus that the contract should be evaluated entirely as a legal entity between two parties consensually coming to an agreement is to deliberately ignore the very social facts that led to the creation of the legal instrument in the first place.
Some attention is due also to the moral aspects of misyar marriage. Strictly prohibitive societies like Saudi Arabia operate on the premise that if the state regulates all aspects of life, then the most repugnant moral failings will simply be eliminated. In other words, with the imposition of strict penalties against sexual promiscuity, short-term dalliances will be eliminated and society will be safely ensconced in marital bliss.
The existence of misyar marriages and the fact that they are being advertised on websites similar to western ones proposing sexual dalliances exposes the hollowness of the idea that prohibition eliminates the desire for promiscuity. In the case of Saudis, misyar marriages demonstrate that sexual promiscuity or the desire for “no strings attached” dalliances has been far from eliminated. Instead, legal loopholes, under the sanction of faith, have been found to justify un-sated desires.
Finally, there are the tangible human costs of such legal loopholes that justify male libidos and further subjugate women into destructive choices. In the year 2008, Saudi Arabia had nearly 200,000 widows most of whom received no support at all from their blood relatives. The requirement that they produce “mahrams” to provide them with permission to work and travel often forced them into misyar marriages for the sole purpose of obtaining livelihoods or obtaining permission to travel.
Relegated to the edge of social acceptance due to the personal tragedies afflicting them, these women are victimised first by the widespread social denial of their inferiority and second by a legal fiction that uses their misery as a means for providing sexual gratification through a version of marriage by eliminating what few rights they were otherwise provided.
Rafia Zakaria is an attorney living in the United States where she teaches courses on Constitutional Law and Political Philosophy. She can be contacted at firstname.lastname@example.org