By Dalenda Largueche
Occasional Paper of the IAS School of Social Science (2010)
Introduction: At the beginning of 1462, under the rule of the Emir hafside Abû ‘Amru ‘Uthmân (1435-1478), a judicial case involving a wife and her husband became so serious in the city of Kairouan, the first Islamic city in Ifriqiya, the medieval name for Tunisia, that it troubled public opinion. Moh’ammad ibn ‘Abd al-Ghâlib alMasrâtî, the husband, had contracted a marriage with Amatu al-H’aqq, the daughter of an aristocratic Arab family in Kairouan, following the rule of monogamy, well attested to in the contract by the following text:” the husband voluntarily promises his wife not to take another wife; if he did it, his wife was empowered to repudiate the woman he would take”. Years later, the husband broke his commitment and contracted a marriage with a second wife. The first wife, consequently, responded by repudiating the new wife. Her husband, however, refused to accept the fact. Supported by her father, she left her conjugal home and brought the matter to the court. The husband claimed that his commitment was attached to his marriage contract only as a voluntary concession and not as contractual condition. For this reason the court ruled in favor of the husband. The case was troubling because the custom in Kairouan city regarding the condition in the marriage contract was considered only contractual and binding. The wife and her father refused the verdict and took the affair to the high judicial authority in Tunis, the capital.
This story, related by a Kairouanian jurist of the fifteenth century , was the basis on which he wrote an epistle, a long juridical text, defending the custom and the woman’s right afforded by the binding stipulation inserted in the marriage contract: “this clause, according to the custom of Kairouan, well-known by all, is a binding condition, unless it is explicitly written as a husband’s voluntary promise.”
This affair is a very interesting case relating to Islamic marriage, but it is rarely studied, despite the fact that the condition of Muslim women is the object of intense research.