Family, Gender, and Law in a Globalizing Middle East and South Asia

1. Disobedient Wives and Neglectful Husbands: Marital Relations and the First Phase of Family Law Reform in Egypt

3 1. DisobedientWivesandNeglectfulHusbands Marital Relations and the First Phase of Family Law Reform in Egypt Kenneth M. Cuno After thirty years of marriage, al-Sayyida, the daughter of Ali Jirjis, became a “disobedient” wife. Her case was recorded in the register of the provincial Sharia court of al-Daqahliyya, which was located in the town of al-Mansura, in Egypt’s eastern Delta, in February 1909. Although her act of disobedience was not described, presumably she had left the marital home that she shared with her husband, al-Mursi al-Adib, which was the standard according to which a wife could be found legally to be “disobedient.” Al-Sayyida’s act of defiance may have been triggered by concern over al-Mursi’s financial support for her and their small son, Abbas. He may have ceased his support or threatened to do so. She may have feared he might divorce her, a realistic fear since divorce was not unusual (Cuno 2008). Women were disadvantaged by divorce, especially women with young children. In court the couple affirmed their marriage. Then al-Mursi affirmed that he owed al-Sayyida and Abbas two piasters per day in maintenance, plus forty piasters every six months for al-Sayyida’s clothing, and that he should provide her with proper housing. Al-Sayyida requested that the judge order Ali to provide those things, and al-Mursi asked the judge to order al-Sayyida to return to “obedience.” The judge obliged both requests (Daqahliyya Legal Proceedings 1909, 8–9). 4 . Colonial Modernity and Family Law Codes The case of al-Sayyida and al-Mursi highlights the mutual obligations of husbands and wives as defined in Islamic law. Moreover, cases such as this one show how ordinary Egyptians responded to changes in the legal environment in which marital relations were adjudicated (and hence negotiated) during the late nineteenth and early twentieth centuries. The nineteenth and early twentieth centuries saw the global diffusion of European legal norms, including the idea of the law code. Europeanstyle and -derived law codes and courts were imposed in various parts of the globe under direct colonial rule, but they were also adopted by defensively reforming regimes in states that escaped formal colonization, such as Japan, China, Thailand, and the Ottoman Empire, including its autonomous Egyptian province. The latter states adopted legal reforms to satisfy a European “standard of civilization” and in the hope of eliminating unequal treaties imposed by the Western powers and participating as equals in the international community (Horowitz 2004). In conformity with this pattern, Egypt adopted codes of commercial, criminal, and property law based on European norms. By the last quarter of the nineteenth century the jurisdiction of the Sharia (Islamic law) courts was largely limited to personal status law, which comprises most aspects of family law. Although personal status law was not codified until after the First World War, its application was affected significantly by procedural codes governing the Sharia courts that were adopted in 1856, 1880, and 1897. These codes were part of the larger European-inspired movement of law reform through codification. Presented as merely organizing (tartib) the courts and their procedures, in actuality they significantly changed the way in which the law was applied, and thereby changed the rules according to which marital relations were adjudicated. This chapter will discuss two aspects of marital life that were affected by those changes during the interval between the procedural code of 1897 and the first code of personal status law in 1920: the husband’s duty to support his wife and children financially and the wife’s duty of obedience to her husband. A sample of the Sharia court records of that period shows how ordinary women and men responded to the new rules, devising strategies to use them to their best advantage. These rules were particularly Disobedient Wives and Neglectful Husbands . 5 disadvantageous to women, yet women’s use of the legal system to protect their rights shows that they were not mere victims, neither silent nor constrained . The experiences of litigants and the jurists who heard their cases influenced the subsequent reform process in the 1920s, in which some of the disadvantages to women introduced earlier in the procedural legislation were corrected. Most studies of the reform of Egyptian personal status law focus on the phase of legislative activity that began in the 1920s, in which codes of positive law governing marriage and divorce...