SHARI’AH, WOMEN AND TRADITIONAL SOCIETY

 

Asghar Ai Engineer

 

In the last few days there has been disturbing news of a Muslim woman Mukhtaran Mai in Pakistani part of Punjab having been raped by men of her village by the order of Panchayat. Another woman called Imrana from Bijnor district of U.P. in India was raped by her own father-in law and the village Pachayat at the instance of a local mullah asked her to marry her own father-in-law and treat her husband as her ‘son’. These are absolutely shocking rulings in the name of Shari’ah.  

 

Similarly few persons raped Mukhtaran Mai in Pakistan as a result of Panchyat’s decision as her brother had done something wrong. These persons were released by the Punjab High Court though later on an appeal filed by Mukhtaran Mai Supreme Court of Pakistan again ordered these alleged rapists to be rearrested. What is shocking is that the Government of an Islamic Re-public of Pakistan black listed her so as to disallow her to travel abroad and on public hue and cry removed her name from the black list but took away her passport. Again under pressure from human rights activists passport was returned to her.

 

In Mukhtaran Mai’s case whole state machinery was ranged against a helpless woman to deny her justice. All this raises important question: what is the place of women in Muslim societies? The Muslim men never tire of repeating that Islam gave women rights and human dignity they deserve and also keep her wrapped up in veil to ‘protect’ her chastity and on the other, readily condone such disgraceful treatment in the society. In almost all Muslim countries (I would hesitate to call them ‘Islamic’ countries as usually they are referred to) women is treated as secondary to men or even worse. The Taliban even denied her right to education and closed down all schools meant for girls and disallowed them to work and earn their livings even when there was no man member in the house.

 

The Saudis do not allow women to drive cars and deny them right to vote even in Municipal elections. In Kuwait women won right to vote recently after a long drawn struggle. In Pakistan women are more often punished for rape and men go scot free as she cannot produce required four witnesses. Also, we find in Sindh what is known as ‘karo kari according to which she is killed if she is found talking to a stranger of the other sex. In Bangla Desh the village mullahs do not allow women even to pillion ride with her husband or some male relative. They issue fatwas if women work with some NGOs for their living.

 

They dub all activities outside home as ‘un-Islamic’ and issues fatwas. Mukhraran Mai was raped at the instance of village panchayat simply because her brother was guilty. Such punishment cannot be given in Islam even if she was guilty of some serious crime, much less for what her brother did. Yet not only the government remained silent spectator but even took steps against her.

 

The question is whether the Muslim ‘ulama consider all this as Islamic (which no one even with elementary knowledge of Islam would uphold as Islamic) or connive at these horrific acts against women because they are men. In India too all Hanafi and Shafi’i ‘ulama consider triple divorce as bid’ah (i.e. sinful) and yet while holding such divorce valid according to their school of law never ever launched campaign against it and never tried to educate Muslim men that they should avoid this form of divorce as it is sinful and they should resort to other forms of divorce like talaq-i-sunnah or talaq-i-hasan or ahsan which were approved by the Qur’an or the Prophet’s sunnah. Whenever the case of triple divorce came to them they would decree that his divorced wife has now become haram (prohibited) to him.

 

We can conclude from all this happening in Muslim countries that to our ‘ulama are more committed to patriarchy and patriarchal values than to Islam. In North West Frontier province where Muttaheda Mahaz, an Islamic Front, has won elections and formed the government, maximum number of such cases take place and yet these ‘ulama who agitated for enforcing shari’ah rule in this province keep silent when such atrocities are committed against women. Even most conservative shari’ah law would not approve of shooting down a woman if she is found to have relations with any stranger and yet ‘ulama keep quiet at such incidents and do not try to educate men against such atrocities.

 

Thus the commitment to Islam is skin deep when it comes to women’s rights. The shari’ah itself is a result of patriarchal interpretation of the Holy Qur’an and even patriarchally loaded shari’ah also is ignored when it comes to persecuting women and depriving them of their rights. There is nothing in the Qur’an which prohibits women from dealing with men other than those who are prohibited to her for marriage and yet in several Muslim societies she is not allowed to deal with them in any manner in the name of Islam.

 

Thus all of us Muslims need to seriously reflect upon condition of women in Muslim societies. The Qur’an gave her all the rights which modern societies have given her in the beginning of twentieth century and yet she never enjoyed these rights except for a short period when the Prophet (PBUH) was alive and until the Caliphate lasted for 30 years. With the Umayyad period she began to loose her rights until she was completely subjugated and became confined to four walls of her house and this began to be considered as her highest virtue.

 

It is now that women are getting educated and becoming aware of their Islamic rights and challenging medieval interpretations laded with patriarchal values and agitating for their rights. In Saudi Arabia too women are challenging their conventional status and asking for more rights and Saudi Government is grudgingly responding to women’s demands. In Saudi Arabia women graduates from universities constitute about 50 per cent and hence their enhanced awareness.

 

In western countries now Muslim women have taken yet another step – leading the mixed congregational prayer and delivering Friday sermon. After Amina Wadood now another Muslim woman from New York Pamela Taylor led mixed congregational prayer in Canada on 1^st July 2005 well, it may be too radical for men in Asian ad African countries but it is undoubtedly an irreversible trend. What is considered ‘unIslamic’ at one stage by our ulama becomes perfectly Islamic after a few decades, or even after a few years, in some cases. 

 

Now a large number of Muslims live in non-Muslim countries and face new dilemmas every day and for which there are no answers in conventional shari’ah books or they conflict with law of the land or modern social ethos. This also necessitates a serious reflection on the state of affairs of Muslim law by committed scholars to Islam. The traditional ulama are by and large unfit for the job. Only those who have in depth knowledge of the Qur’an, hadith and early Islamic history and process of evolution of shari’ah law can do justice to Muslim women’s question in modern times.

 

The blanket assumption that shari’ah is divine and hence unchangeable has to be contested. This is the popular view in the Muslim world. At the cost of repetition I would like to assert that such a view is misplaced. Shari’ah law is a result of man interpretation of divine injunctions and it took several centuries to evolve. The law makers faced new problems and new situations and provided for it through analogical reasoning (qiyas) and consensus (ijma’) among ‘ulama for those problems for which they did not find any answers in divine sources. This is the reason why there are differences in various schools of law (madhahib) like Hanafi, Shafi’I, Maliki, Hanbali, Ja’fari, Isma’ili, Zaidi, Zahiri and so on. There were even more schools which did not survive.

 

This became possible for two main reasons: absence of the concept of priesthood in Islam and the Qur’anic doctrine of freedom of conscience (2:  The early jurists were very well aware of this and hence developed different schools using different interpretations of the divine sources or using different ahadith (reports of Prophet’s sayings). Some used one hadith whole others rejected it in favour of the other. Or some used one Qur’anic injunction and some hadith giving its interpretation while others used different interpretation using some other hadith.

 

In some matters one imam was more liberal while in other matter the other imam took more favourable view for women. That is why many modernists and even traditional ‘ulama suggest that one can borrow from another school if ones own school creates problem for a woman. This is what could have been done in case of Imrana affair also. As the Hanafi school maintains that even in case rape by her father or father- in-law a woman cannot retain her marital tie with her husband one could have taken help of Shafi’i  school which takes different view.

 

Again the problem is with our traditional mullahs that they find nothing unnatural in taking such positions which conflict with modern societal values and enhanced awareness of women. The village panchayat consulted a local maulavi who with his half backed knowledge of shari’ah law even decreed that Imrana should marry the rapist father-in-law and treat her own husband as her ‘son’. This was beyond belief and utterly shocking that any such fatwa can be issued. But then our rural areas are far behind in special matters. Here one should not take religious but sociological view of the matter. This is what happens in backward social milieu.

 

Everyone will agree that to issue any injunction in the name of shari’ah is a highly responsible job. The mullahs in rural areas have half backed knowledge and give their opinion more on the basis of their bias then on the basis of proper knowledge.  In fact the Mullah consulted based his opinion on the Qur’anic verse 24:3 which says, “ The adulterer cannot have sexual relations with any but an adulteress or an idolatress and the adulteress, none can have sexual relations with her but an adulterer or an idolater: and it is forbidden to believers.”

 

Since in the Imrana case father-in-law had intercourse or adultery with her it was decreed by the maulavi that she now live with her father-in- law and treat her husband as her son an opinion which was totally wrong and immoral. According to the Qur’anic verse both should be guilty of adultery and here Imrana is not guilty of adultery but victim of rape. This verse cannot apply to her at all. Moreover this verse is of the general nature and does not deal with daughter-in-law, father-in-law situation. One will have to think twice before applying it in such a situation.

 

Now question arises about the fatwa’ issued by Darul ‘Uloom Deoband which is entirely of different category. One cannot say that this fatwa was issued by someone having no knowledge or half baked knowledge. According to this fatwa she should separate from her husband. After adultery by her father-in-law she can no more live with her husband as he happens to be his son and according to the Qur’an prohibiting marriage with the wife of the father. The Qur’anic verse says “And marry not women whom your father married, except what has already passed. This surely is indecent and hateful; and it is an evil way.” (4:22)

 

This verse obviously refers to the jahiliyyah (pre-Islamic) practice of marrying father’s wives other than ones own mother. It was indeed a hateful practice. It appears it was on this basis that Darul Ulum Deoband issued this fatwah. This is also based on Imam Abu Hanifa’s ruling that when a woman has sex after marriage with her husband she becomes mother of all his children and so can’t marry his son, even though that son may be from previous marriage.

 

The Darul Ulum fatwah may have taken both – above Qur’anic verse as well as Imam Abu Hanifa’s ruling into account and issued the edict. But a fatwah in favour or against any person could be issued not only on general rulings but after through investigation of the case concerned. In Imrana’s case it was rape, not marriage or sex with consent. How such ruling can apply to her case?

 

Only thing that can be said in favour of Deoband is that fatwah was issued without any knowledge of a specific case. One, however, does not know whether with the knowledge of the specific case same fatwah would have been issued or not. It is only a matter of conjecture. It is also to be noted that Imam Shafi’i differs from Imam Abu Hanifa in his ruling on similar case. According to Imam Shafi’I what is haram and impure i.e. rape cannot annul what is halal (legitimate) and pure i.e. relationship. This marriage which is legitimate relationship cannot be annulled by an act of rape.

 

Thus in no case Imrana’s marriage with her husband can be dissolved just because she was raped by her father-in-law. Even if fatwah is issued according to Hanafi ruling, in view of gravity of the case (a woman is married with five children) and as far as possible such a long established perfectly legitimate relationship should not be dissolved specially when it is case of rape on unwilling woman.

 

Now the personal law board’s inquiry that no such rape has taken place and it is likely to be false allegation due to property dispute between son and father, is an altogether different matter. It should be left for the courts to decide, no such hurried conclusion should be drawn on wither side.

 

We are more concerned with the fatwa rather than allegations and counter-allegations from both sides. Let us assume the rape took place and then only we can discuss the merit of the fatwa. My point is that in modern times one has to bear in mind the rights of women. One cannot simply quote a ruling given more than thousand years ago to decide a case in twenty first century. For justice to be done one has to keep concrete circumstances into mind.

 

All women issues unfortunately get politicised and becomes a game in minority-majority politics. Majority communal leaders rush in to demand uniform civil code in any case related to minority women, be it Shah Bano case or Imrana case, the minority community leaders also rush with equal haste to accuse majority community of being anti-Muslim and showing false sympathy for Muslim women. The male leadership of both the communities do not care whether justice is being done to the woman victim or not.

 

Women thus invariably become victim of male politics, particularly so in South Asia. It is therefore highly desirable that one should rise above such considerations and consider women as dignified as men and accord them full dignity honour and rights. It is unfortunate that Qur’an gave women equal status but in all Muslim societies, as pointed out above, they were denied their rightful place and their rights were taken away in the name of Islam.

 

Men want to retain their dominant position in any case. During Shah Bano movement referring to the verse 2:241 it was maintained by some ‘ulama that even one time provision was obligatory only on pious Muslims referring to the word muttaqin and not on all Muslims. This shows strong bias against women of their own community. Thus it is men who give enough opportunity to anti-Islamic forces to ridicule treatment of ‘Islam’ towards women. In fact it is men to blame for such interpretations of the Holy Qur’an.

 

Many verses in the Qur’an were revealed when believers men or women came to the Prophet PBUH) asking certain questions and revelation brought answers in that particular context. The whole asbab al-nuzul (occasions of revelation) literature is there on the subject and many shar’i positions were based on such revelations. But now keeping these asbab al-nuzul in mind we have to reinterpreted these Qur’anic verses.

 

We have to go by Qur’anic values rather than certain verses relating to concrete historical conditions then prevailing. The most central value in the Qur’an is justice, followed by ihsan and rahmah (compassion) and hikmah (wisdom). These values will override all juristic decisions or rulings of the great imams. Taking contemporary conditions into account one must apply these values.

 

If this method is followed then in the Imrana case no such fatwa should have been issued compelling her to dissolve her marriage. As in the case of Shah Bano (Shah Bano was compelled to disown the Supreme Court judgement in her favour and declare that she would stick to shar’ah rather than accept Supreme Court ruling) Imrana was also compelled to say she would follow shari’ah ruling and be prepared to dissolve her marriage.

 

It is vitally necessary to train our ‘ulama in modern social sciences and muftis in modern principles of jurisprudence so that they can be more careful in issuing ruling rather than simply repeating what this or that Imam said. One should also thoroughly understand how the great imams applied the principles usul al-fiqh in their own circumstances and on what basis they applied those principles to their own circumstances and how modern jurisprudence evolved and how certain fundamental values were applied to modern conditions. This comparative study will immensely benefit our ‘ulama, particularly those who deal with shar’i rulings.

 

But even the higher madrasas of learning only repeat what was evolved during early period of Islam. And this despite the fact that Holy Prophet specifically permitted ijtihad (intellectual efforts to re-apply Islamic principles to new conditions). Even the great Imams like Abu Hanifa and Shafi’i faced new situations and challenges and they exerted themselves to apply Qur’anic provisions to these new situations and looked for ahadith to find answers and when they could not, they used analogical reasoning to find answers.

 

The whole process needs to be imitated today rather than their rulings, to find answers to modern problems. One will have to clearly identify what is fundamental and what is incidental to the situation and then decide on the ruling. In Indian subcontinent and specially in India there is urgent need to codify Islamic law as it exists today. Unfortunately our personal law board is not even ready to codify whereas during the British period ‘ulama like Maulana Ashraf Thanvi codified the Islamic law pertaining to dissolution of marriage which gave so much relief to Muslim women at that time. The MPLB should work on codification of Muslim personal law and that itself will give great relief to Muslim women.

 

Now Muslim women are becoming more aware due to spread of modern education and they are challenging all the decisions of Muslim personal law board and they have challenged the present fatwa too. It is a healthy sign and one hopes now women will not accept male domination in the name of Islam and will work for realisation of truly Qur’anic status of equality with men. We have to replace earlier juristic rulings with modern laws based more on Qur’an than on earlier opinions.

      

July 8^th, 2005