Sharia, Fatwas and Women’s Rights
by Asghar Ali Engineer
Every now and then media reports fatwas issued by muftis in India, Saudi Arabia and other countries. One mufti in Saudi Arabia even suggested that if a Muslim woman has to keep a man for household work and interact with him though he is not mehram (from prohibited degree for marriage), she should suckle him from her breast to make him mehram. This fatwa was based on a hadith narrated by hazrat A’isha.
Darul Uloom Deoband, though does commendable work for peace and communal harmony, issues fatwas when it comes to women which reduce women as mere secondary to men or something subservient to them. Recently someone from Dubai jocularly typed on his computer talaq thrice he was told your wife has now been divorced and he cannot marry her until she marries someone else who divorces her and then only she can revert to her former husband who jocularly typed the dreaded word.
In Iran a middle aged woman called Sakineh was punished to death by stoning as she was alleged to have committed adultery though Qur’an no where mentions such a punishment and prescribes only 100 lashes for zina and in Arabic there is only one word be it rape, fornication or adultery. More recently, Darul Uloom Deoband issued a fatwa saying that her husband said word talaq thrice on mobile and even is she did not hear it triple divorce has taken place and she must marry someone else as a necessary condition.
These fatwas are issued just because some jurist or the other had so opined hundreds of years ago keeping in view the conditions then prevailing in society. On most of these issues there is no ijma’ (consensus) and many of them are even based on controversial hadith. The opinion given by jurists hundreds of years ago were based not only on Qur’an o hadith but also on social structure and social ethos then prevailing.
Most of the Ulama or jurists, when asked for fatwa consult only those medieval sources and never bother to apply there own reasoning power. Taqlid (mechanical following) is considered as safest by all these jurists. However, even in those days many jurists had strongly condemned taqlid. Ibn Taymiyyah and Ibn Hazm both were great jurists and both have condemned thoughtless imitation.
Ibn Hazm was from Spain and used to give great importance to freedom of thought and independence of thinking in his juristic thinking. In this he was influenced by his teacher Abul Khayar. He was also of the opinion that one can be called ‘Alim as long as one engages in seeking knowledge. But one who thinks he knows enough is, in fact, jahil (ignorant). And seeking knowledge is seeking truth which is possible only through intellectual process. Our Ulama and jurists, as we know, have long since stopped thinking.
Qur’an is very fundamental source for Islamic jurisprudence but Ibn Hazm, very rightly puts Qur’anic verses in three categories: 1) those verses which need no other source to understand; 2) those verses which can be understood in the light of other verses of the Qur’an and 3) those verses which can be understood in the light of authentic hadith and authentic is one which has been narrated by most reliable and many narrators. Even if this method is followed Islamic jurisprudence, especially in respect of family laws, can be revolutionized.
Most of the jurists unfortunately rely, in matters of family laws, more on weak hadith than on Qur’an. Ibn Hazm, who apparently followed Zahiri School (but not by way of taqlid) strongly criticizes who do not think by themselves and simply resort to taqlid. And Ibn Hazm said all this in 14th century Spain. Our jurist live in 21st century and yet resort to mechanical following of their respective schools.
In fact another Spanish jurist Al-Shatibi was also very creative in his thinking about shari’ah laws. He said that one must first understand the maqasid and masalih i.e. basic objectives and welfare of people for whom shari’ah laws are being framed. Our muftis and jurists do not at all keep these objectives and welfare of people in mind and simply consult standard books of their respective schools (of jurisprudence) and issue fatwas.
It is because of these fatwas that Islam is negatively projected in media and them we complain against media for its Islam bashing. A truly religious person should look at his/her own fault first before blaming others. As someone said we try to remove dust from mirror instead of from our own face. The mirror is going to show dust on our face in any case as long as it is on our face.
Today it is highly necessary to dust off our own face and restore dignity of Islamic shari’ah by re-thinking several issues pertaining to personal laws restoring dignity and rights of women as given by Qur’an and taken away due to personal opinions of jurists in their own circumstances. Imitation should be thrown out of window and all eminent jurists from entire Islamic world should come together and compile corpus of laws giving equal rights to women in matters of marriage, divorce, inheritance, etc.
There is no doubt if we keep maqasid al-shari’ah (objectives) and masalih al-shari’ah (welfare of people) and resort to independent thinking and freedom of thought the Islamic laws would become not only highly just but a model to be followed by all. Ibn Hazm, for example, was of the opinion that if man is economically weak and woman who wishes to be divorced well off, it is for divorced wife to maintain her former husband, something which modern law stipulates. We must go directly to Qur’an and accept only very authentic hadith and Muslim women will be more equal than in other laws.
Centre for Study of Society and Secularism, Mumbai