Download fatwas, their acceptability and their relevance

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FATWAS, THEIR ACCEPTABILITY AND THEIR RELEVANCE
Asghar Ali Engineer
(Secular Perspective Sept.1-15, 2005)
In last couple of months number of controversial fatwas have been issued and media is
strongly reacting to these fatwas. Some fatwas have been issued by well-known
institutions like the Darul Ulum Deoband and some by individual Maulavis or Imams
leading prayers in the mosques. Not only that the fatwas are controversial in themselves
but also there is great deal of misunderstanding about the nature of these fatwas. We
would like to throw light on all these aspects.
First let us throw some light on the nature of fatwas and their significance for Muslims.
First of all it is important to note that there is no concept of priesthood in Islam, much
less church like hierarchy. No authority, howsoever eminent, can claim sole right to
pronounce any binding opinion for all Muslims. Thus no fatwa issued by any eminent
authority is binding on any Muslim, even on one who asks for it.
There is wrong conception that once a fatwa is issued, all Muslims automatically follow
it. It is far from truth. Even among Sunni Islam there are four surviving schools of
jurisprudence (shari’ah), Hanafi, Maliki, Shafi’i and Hanbali and besides these there are
other schools among Shi’ah Muslims like Ja’fari, Ismaili and Zadiyah. Even in every
school there are differences of opinion on several matters.
Whenever any fatwa is issued it is issued according to the position in the particular
school. Whatever fatwas are issued by Darul Uloom Deoband, they are issued according
to the Hanafi school of Shari’ah. The founders of these schools had no arrogance about
absolute truth about their own position. For example, Imam Abu Hanifa used to say if my
two disciples differ from me, listen to them as they are two and I am one. Imam Ibn
Hanbal, founder of Hanbali School refused to allow the Abbasid Caliph to enforce his
maslak (i.e. Shari’ah law according to his formulations) throughout his regime. He
maintained it would deprive people of their freedom to follow an opinion different from
him. He also refused to become chief qadi in his establishment, as his maslak will reign
supreme.
When these eminent imams founders of their respective schools never allowed their
opinion to prevail on all thus depriving others of their freedom of opinion, how can lesser
beings claim that their opinion is final and binding. Thus no fatwa should be taken as
final and binding on all Muslims. In many respects opinions of different schools differ
widely though principles (usul) do not differ. Each Imam derived different conclusions
depending on which verse of the Qur’an or which hadith is being used by the mufti (one
who issues the fatwa).
The muftis in India who issue fatwas follow mechanically their school of shari’ah. They
simply consult their rule- book and pronounce the fatwa. For example the fatwa issued in
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case of Imrana was in keeping with the Hanafi school. If someone had asked this very
question in Kerala where Shafi’i school prevails, the mufti would have issued fatwa just
opposite to what Deoband issued. Because according to Imam Shafi’i what is permissible
(i.e. marriage) cannot be cancelled by what is not (i.e. rape or adultery). Thus a Shafi’I
mufti would have asked Imrana to continue in her marriage with her husband and her
father-in-law would have been punished for committing rape.
Those who issue fatwas are not men of vision or great understanding of the issues
involved. They do not investigate the merits of each case. They only consult the rulebook and pronounce their verdict, as pointed out above. Mostly those who ask the
opinion of the alims (scholars) are poor and illiterate people from rural or semi-urban
areas. Imrana and her relatives live in a village in U.P. The family is of labourers or
rickshaw driver. Her husband is a rickshaw driver.
A fatwa is to be located in its sociological moorings. A backward society consisting of
illiterate and poor people have backward outlook. Their only asset is religion, which
gives them some comfort in their otherwise life full of struggle and hard labour to eke out
their livelihood. One cannot expect them to exercise their own intelligence in the matter.
The fatwas should be criticised but keeping these factors in mind. Mere condemnation
will not do. One should also understand why such fatwas are acceptable.
Those who criticise these fatwas (and rightly so) come from educated middle classes
living in comforts of urban environs. They have benefit of best of education and training.
But poor and illiterate whose only asset is religion cling to the traditional religion. Any
pronouncement from even the imam of a mosque is divine law for them. The same thing
applies to the urban poor also who are far from intellectual and material benefits of
modernity and post-modernity even though they live in urban areas.
Darul Ulum authorities of Darul Ifta’ (department in charge of issuing fatwas) should
also give a thought to re-organise their methodology of issuing fatwas. Darul Ulum
Deoband, is one of the leading seminaries of the Islamic world. When they issue such
poorly rated fatwas, it brings bad name to them. Whenever any question is put to them,
they should not simply consult the rule- book and pronounce their opinion. They should
thoroughly investigate the whole issue and apply their minds in the light of experiences
of our own age.
The great Imams like Abu Hanifa, Imam Hanbal and others when they pronounced any
opinion they spent great deal of time considering every aspect of the issue. Of course they
derived their conclusions from Qur’an and hadith but did not neglect the social situation.
Now our ulama simply follow these great imams mechanically without giving any
thought to the circumstances today. A mufti has great responsibility to discharge. He has
to have social vision and thorough understanding of modern society. Allama Iqbal
suggests in his Reconstruction of Religious Thought in Islam that every generation of
Muslims should re-think the issues and legislate according to their own needs.
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The fatwa that a woman either should not participate in elections or if she does, should
wear purdah is issued without applying the mind at all. They don’t even realise that hijab
is not an end in itself by means of preserving ones chastity and there are other means to
do that. If a woman does not wear hijab does not mean she is morally corrupt or likely to
become morally corrupt. Chastity does not depend so much on wearing or not wearing
hijab but much more on her inner determination and moral training. In medieval society
for reasons not to be discussed here, hijab was considered the only means of protecting
her chastity. Women at that time were not publicly active and were not much educated.
They were confined to household work and hardly participated in public life. Today the
circumstances have changed.
Today women are participating in public life. In Muslim counties like Pakistan and
Bangla Desh they have achieved highest office of prime ministership. Now even Saudi
Arabia has permitted a woman to become pilot. Can she perform such functions
observing purdah? The Qur’an itself lays more emphasis on lowering the gaze (ghassul
basar) and protecting ones private parts (i.e. chastity). Our ulama should learn to make
distinctions between means and ends. For them often means themselves becomes ends.
For example, for them purdah has become more important than chastity.
A mufti from Hyderabad issued a fatwa that a man can marry two wives simultaneously
as the Qur’an permits man to marry four wives at a time. This fatwa was issued to enable
a middle aged Arab to marry simultaneously marry two teenage girls. Such fatwas bring
shame to Islam. The Qur’an had permitted to marry more than one wife to meet a crisis
situation created after Battle of Uhud in which ten percent of man population was killed
and large number of widows and orphans had to be taken care of. And this permission
was also given subject to rigorous conditions and warning Muslims that they cannot do
justice to all wives even if they want to and they should not leave their first wife
suspended in air.
Such fatwas as issued by a Hyderabad mufti do great injustice to the real spirit of Qur’an.
They not only injure the spirit of Qur’an (which is monogamy in normal circumstances as
per verse 4:129 of the Qur’an) but reduce it to a license to enjoy sexual pleasure with
women. The Arabs come for this purpose and bribe their way through to marry young
teenaged girls from poor families. The muftis should be ashamed to issue such fatwas
thoughtlessly.
Our national media also preys upon such cases and instead of investigating thoroughly all
the circumstances write more out of misunderstanding, if not hostility towards Islam and
Muslims. Some papers even write out of downright hostility. Media should realise that
such hype on fatwas creates tensions between communities and put entire Muslim
community in the dock.
They do not even care to report that there are liberal and progressive Muslims who
oppose such fatwas and that today an internal debate is raging among Muslims. Also,
such things are not happening among Muslims only. Such things are happening along all
sections of society. A woman is not treated with dignity due to her in all the communities
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India and all of us are in need of reorienting our attitude towards women and their rights.
Sooner we realise better it is for our society and our country. Let us not point fingers at
each other but treat the issue with seriousness it deserves.
-------------------------------------Centre for Study of Society and Secularism
Mumbai