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Sharia, fatwas and women's
rights
[Photo by rediff.com] |
| 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.
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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.
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