Yoginder Sikand

The rape of a Muslim woman, Imrana, by her father-in-law some weeks ago has now snowballed into a major controversy following a controversial fatwa issued by a mufti of the Deoband madrasa announcing that the marriage between Imrana and her husband now stands dissolved. Further complicating the controversy, the Hindutva lobby is using the fatwa as an excuse to step up its campaign for the abolition of Muslim personal law, presenting itself as savior of Muslim women, its complicity in the mass rape and murder of Muslim women notwithstanding. And making matters even more messy, sections of the ‘mainstream’ media, ever on the prowl for stories of ‘oppressed’ Muslim women as a stick to beat Muslims with, have sought to sensationalize the issue all out of proportion, presenting the fatwa as further ‘evidence’ of the unrepentant ‘obscurantism’ of the mullahs, as if Hindu priests were any better when it comes to the violation of women’s rights.

For all the heat that it has generated, the Imrana case has, in a sense, proved to be a blessing in disguise, for it has generated considerable soul-searching within the Muslim community about the institution and authority of the ‘ulama or Muslim clerics, who see themselves as authoritative spokesmen of the faith. It has also led to heated discussion as to precisely what the shariah or Islamic law is or lays down and as to whether or not traditional Islamic jurisprudence or fiqh can or cannot be modified or reformed .

Increasingly, as these discussions suggest, alternate voices seek to speak for Islam, challenging the authority that the ‘ulama of the madrasas claim for themselves. The responses to the Imrana controversy are also bringing out into the open the considerable diversity of views among the ‘ulama of different schools of thought on matters of Islamic jurisprudence, as some non-Deobandi ‘ulama have joined the fray in critiquing the Deobandi fatwa. These voices indicate the fluidity and contested nature of precisely what the shariah is seen as constituting, and at the same time point to the possibility of developing new, more gender-just perspectives on jurisprudence from within a broadly defined ‘Islamic’ paradigm.

The ‘ulama, predictably, are divided on the fatwa, this reflecting the ambiguous nature of the shariah and the different sectarian understandings of it that, on several points, are mutually contradictory. Most Hanafi ‘ulama, both Deobandis and Barelvis, who represent the majority of the Indian Muslims, appear to concur with the fatwa, as the fatwa is said to be in accordance with the Hanafi interpretation of the shariah as laid down in the classical Hanafi fiqh texts. For their part, the Ahl-i Hadith, the Indian counterpart of the Saudi ‘Wahhabis’, have consciously distanced themselves from the fatwa. Unlike the Hanafis, they are not bound by the corpus of traditional fiqh, following the guidance only of the Qur’an and the Hadith, statements attributed to the Prophet Muhammad.

In a recent statement, a leading Ahl-i Hadith scholar, Abdul Wahhab Khilji, has declared that neither of these primary sources of Islam law calls for dissolution of marriage on account of rape by a woman’s father-in-law, unlike what the Deobandis claim. Hence, he argues, the fatwa is not ‘Islamically’ valid. A similar statement critiquing the fatwa has been issued by the newly-constituted All-India Shia Muslim Personal Law Board. Incidentally, one of the reasons for the setting up of this Board was that several Shia ‘ulama felt that the All-India Muslim Personal Law Board was heavily over-represented by the Deobandis and hence unwilling to listen to alternate perspectives from the other Islamic schools of thought.

Likewise, another recently-established Muslim organisation, the All-India Muslim Women’s Personal Law Board, has condemned the fatwa as unjust, claiming that it had ‘misinterpreted’ the tenets of Islam. No doubt this organisation of spirited Muslim women will see Deoband’s latest fatwa as added justification for the setting up of a separate Muslim Women’s Personal Law Board and as further proof of the fact that Muslim women need to interpret Islam for themselves, rather than rely on conservative patriarchs to explain their faith to them.

It is not likely, however, that the ‘ulama of Deoband will be moved by the arguments of these critics. The Deobandis, by and large, see the Ahl-i Hadith and the Shias as heretics and not ‘true’ Muslims at all, and hence lacking the authority to speak for or about Islam. And as for the women behind the All-India Muslim Women’s Personal Law Board, they are probably seen by many Deobandis as ‘ignorant’ ‘upstarts’, at best, or as ‘agents’, unwitting or otherwise, of the ‘enemies’ of Islam, at worst.

Not all Deobandi ‘ulama would necessarily concur with the fatwa, however. I am given to understand by a friend of mine, who describes himself as a ‘dissident Deobandi’, that a small, yet significant, number of younger Deobandi scholars, particularly those who have also studied at universities, are resentful of the fatwa. My friend, who pleads to remain anonymous for fear of being attacked by his fellow Deobandi ‘ulama, says that the fatwa goes against the basic Islamic tenet of ‘adl or justice. ‘Why should a woman be punished for a crime committed by someone else? This is totally against what the Qur’an teaches’, he explains. He tells me that the fatwa is simply the personal opinion of a particular mufti and that it is not binding or the ultimate word on the subject, unlike what the media presents it as or as the authorities at Deoband might like Muslims to believe. He argues that although the fatwa is in accordance with the traditional Hanafi view, which the Deobandis staunchly defend, there is actually no compelling religious argument for Muslims to blindly follow Hanafi jurisprudential precedent.

The Shafi, Hanbali and Maliki schools of Islamic law, regarded by Sunni Muslims as equally ‘orthodox’ as the Hanafi school, do not lay down dissolution of marriage if a woman is raped by her father-in-law, he tells me. Hence, he says, there is no reason why Hanafi Muslims cannot ‘benefit from’ these other schools of Sunni jurisprudence on this or any other matter. Yet, he complains, it is unlikely that the majority of his fellow Deobandi ‘ulama would agree to this proposal. ‘They insist on blindly following Hanafi fiqh, although they also claim that the other three schools are also valid’, he says, adding that their ‘lack of familiarity with the real-world problems of Muslims’ makes for their dogged resistance to any reform in traditional Hanafi jurisprudence. He insists, however, that such reforms are urgent. ‘Islam and the Islamic shariah cannot be reduced to Hanafi jurisprudence and the Deoband school’, he stresses.

Numerous Muslim intellectuals have also spoken the fatwa, arguing that it is not in accordance Islam as they understand it. In this way, they have sought to question the authority of the conservative ‘ulama as ultimate religious authorities, arguing for the right to interpret their faith for themselves. One of the most outspoken critics of the fatwa is Dr. Mustafa Kamal Sherwani, president of the All-India Muslim Forum and presently Dean of the Faculty of Law and shariah at the University of Zanzibar, Tanzania. In a recent statement he has condemned the fatwa as ‘most retrograde’ and as being ‘in total violation of the shariah’. He claims that the Qur’an testifies that ‘nobody can be punished or subjected to adverse consequences for any deed which he or she was compelled to commit, and the commission of which could not be resisted despite all human efforts’.

‘According to Qur’nic injunctions’, he adds, ‘even if a woman is forced into prostitution by those under whose custody she is, she is free from any guilt, sin or whatever might be associated with it’. Hence, he says, punishing Imrana for being subjected to rape by having her divorced ‘is a gross injustice which can never be authenticated by the shariah’ He condemns the fatwa as unambiguously ‘un-Islamic’ and fears that it is ‘bound to project Islam as a cruel and unjust religion’.

‘I am sure’, he says, ‘that by acting in this most heinous and negative manner, these obscurantist clergy are ruthlessly damaging the image of Islam’. He argues that the fatwa and ‘similar developments’ ‘amply manifest’ the fact that the traditional madrasas and mullahs have ‘lost their utility’ and that ‘the more free hand they are given in tampering with the shariah, the more disastrous they will prove for the social and religious fabric of the community’.

‘Now is the time’, he concludes in what will obviously been seen by the traditional ‘ulama as a major assault, ‘when a sustained movement must be launched to keep the illiterate Muslim masses away from the nefarious ideology of these madarsas and maulvis if Islam is to survive as a modern religion in the twenty-first century’.

Another bitter critic of the fatwa is Juzar Bandukwala, professor at the M.S. University, Vadodara. He argues that while Islam obviously condemns consensual sexual relations between a father-in-law and his daughter-in-law, for which it lays down strict punishment for both parties, the Imrana case is clearly different since it involves rape. Hence, rather than being punished, as the fatwa in effect advises, Imrana ‘demands compassion and kindness’ in accordance with the teachings of the Qur’an, particularly because she is the mother of five young children and comes from a poor family.

‘I am surprised’, he says, that ‘the Deoband ulama failed to apply these Qur’anic commands’, and laments that they have ‘erred badly’. At the same time as he critiques the fatwa, Bandukwala expresses the fear that the Imrana case might be used by Hindutva forces to promote its anti-Muslim agenda by ‘stereotyping Muslims’ and by ‘shedding crocodile tears for the plight of Muslim women’. While welcoming the concern for Imrana expressed by human rights and women activists, he warns of the risk of playing into the hands of the Hindutva lobby. ‘We may be on the verge of another Shah Bano disaster’, he cautions, ‘and the last thing the country needs at this stage is another issue to widen the gulf between Hindus and Muslims’.

Yet another vocal critic of the fatwa is the Washington D.C.-based Kaleem Kawaja, president of the Association of Indian Muslims of America. He believes that the case should have been handled by the state courts, in accordance with secular laws, instead of having been taken to the mullahs for their decision. He berates some Deobandi ‘ulama and certain members of the All-India Muslim Personal Law Board for ‘compounding the problem’ by ‘making highly irrational statements regarding the marital status of Imrana’, thereby subjecting the victim to ‘further misery’.

Rather than seeing the problem as rooted essentially in patriarchal fiqh formulations, he claims that the fatwa is based on ‘obscurantist tribal customs’. In any case, he stresses the need for both the Deoband madrasa and the All-India Muslim Personal Law Board to ‘make structural changes in their set-up’ in order to ‘stop such obscurantism and injustice to women in the name of Islam’. He suggests that at least a third of the 40-member Working Committee of the Board should consist of women, in place of the sole woman that it has today, and argues that there are indeed several learned Muslim women who are qualified to fill such a role.

Other Muslim intellectuals, while criticising the fatwa, have argued that it points to the urgent need for ijtihad or contextually sensitive re-readings of Islamic jurisprudence to meet contemporary demands. One of the foremost proponents of ijtihad today, the Islamic law expert Professor Tahir Mahmood insists that Imrana’s fate cannot be decided by ‘ancient juristic wisdom’ laid down ‘by some religious jurists of Arabia over a thousand years ago’. That rule, he added, may have been a pro-women provision for its times, in a society when remarriage for divorced women was easy, but in India today, he says, the rule ‘need not be strictly imposed on an innocent and unwilling couple desirous of continuing in marriage’.

In a similar vein, Ghulam Faruki, an Indian Muslim commentator based in the United States, opines that the fatwa indicates that the Indian ‘ulama ‘are way behind their counterparts in other countries’, and urges then to interpret shariah laws, through a process of ijtihad, in a more gender-equitable manner. In case the ‘ulama refuse to consider any such reforms, he suggests, Muslims must struggle for the right for individuals to ‘opt for a uniform code’ in order to ensure gender justice.

Several Muslim critics of the fatwa appear to be incensed with what they see as its ‘un-Islamic’ conflation of patriarchy and shariah. They have also berated some senior leaders of the All-India Muslim Personal Law Board for apparently approving of the fatwa, arguing that this indicates that the Board is unwilling to give women their due. Thus, a certain Zafar Iqbal, a frequent contributor to several Muslim internet discussion groups, accuses the author of the fatwa and members of the Board that have approved of it of double standards for men and women. ‘If the rapist is being dealt with under civil law’, he asks, why should the victim be ‘subjugated to Islamic law?’ ‘If is difficult to justify why Islamic laws of punishment should apply to female victims, not to male perpetrators’, he asserts.

Echoing the same view, Arshad Alam, an Indian Islamic scholar based in Germany, argues that the fatwa clearly indicates that traditional understandings of Islamic jurisprudence ‘do not give adequate protection to women’, and hence are in need of reform. He stresses what he sees as the deep-rooted patriarchy underlying the Deobandi version of Islam, arguing that this is clearly evident from the fact that while the author of the fatwa ‘categorically wants the separation of the women in question from her husband, he suggests that the rapist father in law should be tried under the Indian penal code’. In other words, ‘while women are to be covered under Personal Law, the men are free to enjoy the reformed secular law’.

Supporting Alam’s argument, another Muslim writer, Parveen Khan, writes that the fatwa ‘exposes the fact that Muslim women cannot expect justice from patriarchal mullahs’, and predicts that the chain of shariah courts all over the country that both the all-India Muslim Personal Law Board and the largely Deobandi Jami‘at ul-‘Ulama-i Hind have recently started demanding ‘will lead to a hundred thousand Imranas, Gudiyas and Shah Banos, on an unimaginable scale’. At the same time, she warns that the Imrana case should not be sensationalized out of proportion in order to portray Islam as ‘irredeemably misogynist’. She rightly critiques a marked tendency in the ‘mainstream’ media to highlight instances of ‘oppressed’ Muslim women, while downplaying or even ignoring similar or even worse cases of oppression of Hindu women, including of such heinous crimes as sati and girl-child sacrifice that are not practiced among any non-Hindu communities, including the Muslims.

For their part, and not surprisingly, various ‘secular’ political parties, with their eyes on Muslim votes, have refused to condemn the fatwa, except for the CPI(M), which has called for a review of gender unjust laws. Since the conservative mullahs exercise a powerful political influence among significant sections of Muslim voters, these parties are consistently wary of antagonizing them. Instead, they go out of their way to court them in order to stress their ‘secular’ credentials. This symbiotic relationship brings the politicians Muslim votes while it at the same time reinforces the mullahs’ claims to being the authoritative spokesmen of the Muslim community. The fear of antagonizing the mullahs, even if at the cost of legitimizing the oppression of women, thus explains ‘secular’ hero Mulayam Singh Yadav’s claim that the fatwa must have been the effort of considerable ‘thought’, because, so he alleges, the mullahs ‘are all very learned and they understand the community and its sentiments’.

The Congress has adopted a similar stance, and its leader in Uttar Pradesh Salman Khurshid has announced that the issue is an ‘individual one’ which should be dealt in accordance with the shariah. The Congress’ position is, of course, entirely predictable, given the historically close ties between the party and the Deobandi mullahs, reinforced lately by the participation of its President in the recently-held meeting of the Deobandi Jamiat ul-‘Ulama-i Hind.

Between obdurate mullahs, anti-Muslim Hindutva ideologues, unscrupulous politicians, newspapers hungry for sensational stories and unrepentant patriarchs the fate of Imrana and countless other women like her precariously hangs in the balance. Yet, as the spirited critique of the fatwa mounted by sections of the ‘ulama as well as Muslim intellectuals indicates, a new Muslim leadership is today in the making, one that is sensitive to the real-world concerns of hitherto silent voices like Imrana and her brothers and sisters who now refuse to remain mute.


Copyright©2005 Yoginder Sikand. About the author