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PUCL Bulletin, January 2007

Women’s rights and Islam

-- By Asghar Ali Engineer

Imrana’s case from UP and Ayesha Azmi’s case from London are very much in media’s glare these days. Earlier in eighties of twentieth century the Shah Bano’s case remained in media headlines for months. There is no doubt that media pays more than needed attention when it comes to Muslim women. Muslims always complaint abut this extraordinary interest of media, both electronic and print, takes in Muslims women’s matters.

Having said this I must say Muslims have to do serious thinking on what goes on in their society. Let them reflect honestly if they follow the Qur’anic injunctions about women honestly. They time and again show their emotional attachment to the Qur’an but then it comes to the practice of the Qur’anic teachings, they are less than honest, and particularly so when it relates to women.

The Muslim ‘Ulama are largely responsible for the plight of Muslims in all Muslim societies whichever country they belong to. They are under great influence of patriarchal values of the society they live in, rather than the Qur’anic values. The entire Qur’anic discourse on women is right-based and for men duty based. However, the ‘Ulama have reversed it and unto ‘Ulama entire discourse about women is duty-based and for men is right-based. So much for their honesty to Qur’an.

The Imrana case has again attracted media attention because of the fatwa issued by Darul ‘Ulum Deoband and also by village Panchayat. One can understand behaviour of village Panchayat as it is not Islamic authority but one is greatly saddened by the fatwa issued by Darul ‘Ulum, Deoband, the great Islamic seminary second only to Al-Azhar, in importance. Imrana, wife of a rickshaw driver from Muzaffarnagar district in UP was raped by her father-in-law. Ali Mohammad, father-in-law who raped her has been convicted, and the act of rape has been established. The ‘Ulama, before the court verdict came, had even doubted her allegations against her father-in-law and said that it is a property dispute and she is making false allegation against her father-in-law to take revenge. However, they said, if at all she has been raped, she should divorce her husband and marry another man as she had sexual intercourse with the father of her husband.

The “Ulama, hardly bothered about the fact that she was raped and it was not consensual sex. Had she had consensual sex with him, it would have been entirely different matter. If she has been raped, how can she be blamed? One should have all the sympathy for her and punishment should be given to her father-in-law. Instead our ‘Ulama are for punishing her. They are not even taking the fact in account that she has five children from her husband and if she obtains divorce, who will look after them? One of her daughters has reached marriageable age.

In rural India a woman cannot afford to defy a fatwa, justified or not. She has to live in that society and arrange marriages of her children. Those who face boycott they alone know the consequences. Our ‘Ulama, without bothering to study actual situation and the context, just open their Shari’ah books and mechanically issue fatwas. They are totally shy of applying principle of ijtihad, which means creative re-interpretation of Shari’ah rulings. The Prophet (PBUH) had himself encouraged Mu’adh whom he had appointed as governor of Yemen, to practice ijtihad.

Unfortunately our ‘Ulama come from poor and backward society and have no knowledge of modern society and its dynamics. They never dare to think out of the box. They have been trained only to study classical Shari’ah. They even do not know that great Imams themselves differed from each other while giving their opinion on the same question. For example Imam Abu Hanifa, who was great legal genius and thinker, maintained that what is haram (prohibited) cancels what is halal (permissible). Thus according to Hanafi School if Imrana has been raped which is haram will cancel her nikah (marriage) which is permissible. On the other hand, Imam Shafi’I, another great jurist, is of the opposite opinion i.e. what is halal cannot cancel what is haram which, in Imrana’s case, would mean that her being raped by her father-in-law which is haram cannot cancel her nikah, which is halal. Since Imrana is Hanafite and fatwa was obtained from Hanafi mufti he declared her nikah with her husband cancelled and advised her to obtain divorce and marry someone else. Had the fatwa been obtained from a Shfi’I mufti he would have declared her nikah as intact.

Similarly Ahl-e-Hadith also would have upheld her nikah. Thus we can see there are different schools of thought and our muftis and ‘Ulama give fatwaas according to their schools of thought. It is high time that the ‘Ulama would at least take from different schools of jurisprudence what is favourable to women and avoid such embarrassing situations. There is definite precedence for that. Maluana Ashraf Thanavi, a prominent ‘alim of his time, too from Maliki school what was favourable to Muslim women about dissolution of marriage as Hanafi School required 90 years of waiting for a Muslim women whose husband was missing. In Maliki school it is only four years of waiting.

There are several such women issues on which one or the other Shari’ah school is more favourable than the other. For example, triple divorce in one sitting is not valid in Ahl-e-Hadith School whereas it is allowed both in Hanafi as well as Shafii’ School. Thus this provision from Ahl-e-Hadith could be incorporated to abolish triple divorce in one sitting. Such compilation will greatly ease Muslim women’s position in India.

In fact such compilation was done in Turkey in nineteenth century itself during Ottoman period. All Muslim countries are making changes in the Shari’ah laws in respect of women and even applying direct Qur’anic provisions or even attempting ijtihad in other matters. It is only in India where even compilation from all schools of Shari’ah is considered untouchable, let alone attempting ijtihad. There is total stagnation in Shari’ah laws in India and women continue to suffer.

Our ‘Ulama simply consult their school of jurisprudence and issue fatwas without caring about the consequences. No wonder than that whole world thinks that Islam oppresses its women and what is worse, refuses to accept any change in the medieval formulations by the Islamic jurists. Our ‘Ulama declare Shari’ah laws as divine to stall any attempt to change and to win Muslims in favour of no change.

It is simply not true. Shari’ah is by means immutable. It is product of human thinking, as much as divine laws given by the Qur’an. At best it can be said to be human approach to understanding and applying divine injunctions. Thus one can say Shari’ah is semi-divine and must change in as much as it is human. The conditions in which the great Imams thought have changed considerably and one has to think again in new context. Today women are active agents in the society and are greatly aware of their rights. Women during the Holy prophet’s time were also very active on various fronts and fought their way even into men’s world. Often the Prophet consulted his wives from important tasks and assigned them important work including leading prayers in their house. They also actively participated in battles and worked as nurses on battlefields.

Hadrat Umar, the second Caliph, appointed a woman as market inspector and Imam Abu Hanifa allowed women to become judges. Unfortunately from Umayyad period onwards, position of women declined gradually until they were confined to four walls of their houses and put under Purdah. Many historians of early Islam hold that the kind of Purdah we have today came into vogue in the Umayyad period when they imitated Roman and Sassanid empires who kept hundreds of women in haram.

Today women are playing very important part in social, political and economic life of various societies, Indian as well as others. All Shari’ah issues, which do not even conform to Qur’anic injunctions, have to be re-thought and reformulated. If one goes by the women’s movement in the country the ‘Ulama would have tough time, if they do not take notice of the changes coming in the society.

Though Muslim women are comparatively backward but a section living in urban areas is highly educated and is floating NGOs to fight for their rights. Now some women have even formed their own personal law board headed by Shaista Amber and are questioning everything the ‘Ulama say. In other words, even Muslim women, are not going to accept whatever these learned men of Islam say.

India is a democracy and all have fundamental rights to freely express themselves. It is not closed society dominated by ‘Ulama that one will accept all they say without critically examining it. The ibadat (matters pertaining to worship and matters relating to hereafter) should not be subject to any change but matters pertaining to mu’amalat i.e. between one human being and other human being must be subject to change and only Qur’anic values will remain immutable, the Qur’anic values like justice (‘adl), benevolence (ihsan), compassion (rahmah) and wisdom (hikmah).

If the ‘Ulama do not show sensitiveness to others suffering and continue to remain rigid, they will not serve the cause of Islam, much less that of women. .

People's Union for Civil Liberties, 81 Sahayoga Apartmrnts, Mayur Vihar I, Delhi 110091, India. Phone (91) 11 2275 0014