A Deobandi With A Difference: Waris Mazhari on the Imrana Affair

Yoginder Sikand

Posted Oct 31, 2005      •Permalink      • Printer-Friendly Version
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A Deobandi With A Difference: Waris Mazhari on the Imrana Affair

Yoginder Sikand

Waris Mazhari is a Deobandi maulvi with a difference. Editor of the New Delhi-based Tarjuman Dar ul-‘Ulum, the monthly organ of the Deoband madrasa’s Old Boys’ Association, he is a fervent champion of madrasa reform. His outspoken views have won him both applause as well as criticism from his fellow Deobandis. Several younger generation Deobandi graduates, he tells me, support his views on revamping the madrasas, while others, mainly from the older generation, are bitterly opposed to them. Mazhari is one of the few Deobandi ulama to have come out in opposition to the recent controversial fatwa issued by a mufti of the Deoband madrasa dissolving the marriage of Imrana, a woman alleged to have been raped by her father-in-law.

In the wake of the Imrana affair Mazhari penned a lengthy essay on the fatwa. Titled ‘Imrana Has Been Sacrificed at the Altar Not of the Shariah But of Sectarian Prejudice’, Mazhari’s hard-hitting essay is one of the few, and certainly the most, incisive critiques of the fatwa penned by Indian Muslim scholars. Muslims, says Mazhari in his opening sentence, believe that Islam is a divine religion revealed by God for the benefit of humankind. Surely, then, he insists, ‘God’s law’ cannot be so ‘cruel’ as to ‘punish’ a woman raped by her father-in-law with the dissolution of her marriage, as the Deoband fatwa announces.

Mazhari admits that the fatwa is not a novel one. Rather, it is based on rulings contained in the books of classical Hanafi jurisprudence, which the Deoband madrasa strictly adheres to. Yet, Mazhari says, following a particular maslak or school of law should not mean blind imitation of it. In fact, he says, ‘worship of the maslak’ (maslak parasti) can lead to gross injustice, such as is obvious from the Deoband mufti’s opinion on the Imrana case. Critiquing the general Deobandi tendency of strictly adhering to medieval Hanafi legal prescriptions, Mazhari pleads for greater flexibility. Fatwas, he says, must be based not simply on textual arguments but also on a close examination of social reality. In the Imrana case, as in many others, he says, fatwas often do not take into account ‘ground realities’. He critiques what he sees as the refusal of many ulama to ‘recognise what is happening in society around them’ and to ‘engage in social reform’. ‘Ignoring their responsibilities’, he says, they tend to ‘place the blame for all the problems of Muslims on what they say are the conspiracies of the enemies of Islam’.

Mazhari’s case for a reform in the methodology of ifta, the delivering of fatwas, is based on his insistence that, as he puts it, ‘the shariah must be interpreted in the light of contemporary conditions’. A key principle in this regard is ‘to alleviate unbearable hardship’, and Mazhari refers to sayings of the Prophet that stress ‘comfort’ over ‘difficulty’ in religious matters. This is an oblique reference to the suffering of women like Imrana as a result of the Deoband fatwa. A second principle that Mazhari refers to is the clear distinction that needs to be borne in mind between the shariah, or what Muslims believe to be a divine code of life, on the one hand, and fiqh, or Muslim jurisprudence, on the other. The former, he says, is immutable, while the latter, being a product of human reflection on what are believed to be divine sources, contains many errors that are not in accordance with the pronouncements of the Qur’an and the Hadith, statements attributed to the Prophet Muhammad.

Mazhari laments that many ulama tend to conflate the two, giving rise to unnecessary hardship. Without explicitly saying so, he seems to argue that the Deoband fatwa on the Imrana case is an instance of fiqh, in this case Hanafi jurisprudence, being given preference over the shariah, which he sees as clearly wrong. Since the schools of Muslim law are based on human effort, Mazhari argues, there is no need for Muslims to strictly conform only to one of them, contrary to what the Deobandi ulama generally insist. If on a particular matter a school of law prescribes a rule that might give rise to ‘intolerable hardship’, he says, Sunni Muslims can resort to another of the four Sunni schools. Since the Hanafi school lays down that the marriage of a woman raped by her father-in-law is dissolved, and since this constitutes ‘intolerable hardship’ which the shariah does not prescribe, Mazhari suggests that Muslims can take recourse to the Maliki or Shafi schools of Sunni law instead. Unlike the Hanafi school, these two schools consider the marriage of a woman raped by her father-in-law to remain intact. They base their argument on this point on the opinion of leading companions of the Prophet Muhammad as well as on the reported statement of the Prophet that a forbidden act (in this case, rape) cannot nullify something that is permissible (in this case, marriage). For Hanafis to resort to another school of Sunni law on any matter, Mazhari says, is not a novelty, as they have done so in the past on numerous occasions. Indeed, he argues, the ideological progenitor of the Deoband madrasa, the eighteenth century Shah Waliullah of Delhi, argued for precisely this sort of jurisprudential eclecticism and flexibility in ‘conditions of emergency’. Yet, he laments, most Deobandis today do not allow for this. He attributes this to ‘sectarian prejudice’.

Mazhari believes that it is urgent that his fellow Deobandi ulama abandon their rigid stance on blind conformity to medieval Hanafi prescriptions. If this does not happen, he says, Muslims, particularly women, will continue to suffer from wrongly-conceived fatwas. For instance, he writes, Hanafi jurisprudence lays down that if a woman is simply touched by her father-in-law with lust, her marriage stands dissolved, even if no sexual intercourse occurs. If Hanafi ulama continue to adhere to the Hanafi code in this matter, he says, numerous women would have their marriages annulled for no fault of their own. Calling for what he terms ‘dynamism’ in developing Islamic jurisprudential responses to issues of contemporary concern, Mazhari stresses that, in contrast to many Deobandi ulama today, early Muslim scholars did not ‘blindly follow’ the prescriptions of the putative founders of the schools of Islamic jurisprudence. Rather, debate and dissent were strongly stressed and were, in fact, encouraged. Thus, Imam Abu Yusuf and Imam Muhammad, senior students of Imam Abu Hanifa, putative founder of the Hanafi school which the Deobandis follow, disagreed with their teacher on his rulings on a number of issues. While holding Imam Abu Hanifa in great respect, they insisted on their right to engage in ijtihad or creative reflection on the sources of Islamic law themselves without being bound by the opinions of their teacher. Today, Mazhari rues, this sort of ijtihad is generally frowned upon among South Asian ulama, leading to what he calls ‘intellectual stagnation’, as reflected in fatwas such as the one passed by the Deobandi mufti on Imrana. Instead of engaging in contextual ijtihad, South Asian ulama generally pass fatwas based on tomes of Hanafi law written centuries ago in a very different social context, he says. Further, he claims, unlike in the early days of Islam, when fatwas were given after careful deliberation and investigation, today they are often issued ‘spontaneously’, without the care and study that this sensitive work requires.

Mazhari appeals to his fellow Deobandi ulama to learn from the example of certain progressive ulama elsewhere, who, he says, are now adopting a more creative and relevant approach to Islamic jurisprudence. In place of strict conformity to a particular school of Muslim jurisprudence, he writes, they are developing what is called ‘Islamic fiqh’, based not on the prescriptions of medieval legal texts but, instead, on the underlying ‘intentions’ or ‘aims’ (maqasid ) of the shariah, such as equality and justice. To popularise this approach to Islamic jurisprudence in India Mazhari suggests the setting up of research institutions consisting of ulama belonging to different Muslim sects as well as social and natural scientists, who can collectively deliberate and decide on issues that require the ulama to pass fatwas.

By providing ‘Islamically’-grounded arguments for his programme of reform of Hanafi jurisprudence Mazhari steers a middle path between the two extremes, represented by ulama groups opposed to any reform in Muslim Personal Law, on the one hand, and advocates of a Uniform Civil Code, on the other. Mazhari insists that reform of traditional Hanafi laws is imperative from the point of preserving Muslim Personal Law itself, a major concern of the ulama and Islamic organisations. If it is not reformed, he warns, numerous controversies such as the one over the Imrana affair are bound to arise in future, giving ample ammunition to those opposed to Muslim Personal Law, particularly the Hindutva lobby. Illustrating his argument, he says, Hanafi law decrees that a divorce uttered by a man at gun-point is valid. There are other similar absurd arguments in the Hanafi and other traditional Muslim schools of law as well, Mazhari tells us. If the ulama were to issue fatwas in accordance with these rulings on such matters, he warns, the media as well as the Hindutva lobby would use them to push their case for a Uniform Civil Code. Hence, Mazhari concludes, to provide justice to women, in accordance with his own understanding of the shariah, as well as to pre-empt the possibility of a Uniform Civil Code, there is an urgent need for the ulama to revive the lost tradition of ijtihad and reconsider traditional laws in the light of contemporary conditions.