Law unto itself

Amidst the public outcry following the Imrana controversy, the beginnings of a welcome debate on Islamic law, the Shariah

BY YOGINDER SIKAND

For all the additional pain and unwanted publicity that Imrana has suffered as a result of the controversy following a fatwa from the Deoband madrassa nullifying her marriage after she was allegedly raped by her father-in-law, the brouhaha has had a curious positive consequence. It has led to heated debates among sections of the ulema (religious scholars) belonging to different Muslim sects as to exactly what Islamic law or the Shariah is all about. The ulema and Islamist ideologues never tire of insisting that the ideal solution to the myriad problems besetting humankind lies in the Shariah. Hence their passionate advocacy of an Islamic State that would enforce the Shariah as the ideal political dispensation. By provoking the ulema of different sects to articulate different indeed mutually contradictory interpretations of the Shariah on the particular issue of a woman raped by her father-in-law, the Imrana controversy strikingly reveals that the Shariah is not the monolithic or well-defined system that it is generally made out to be by the ulema and Islamists as well as those opposed to their claims. The controversy has also made amply clear the limits and internal inconsistencies of traditional Shariah-based discourse. If the ulema themselves are so confused and divided as to what exactly the Shariah lays down on this particular issue how, one may ask, do they propose to undertake the ambitious task of running modern State systems based on Shariah laws, which is what they believe Muslims everywhere must strive to establish?

A related aspect of the Imrana controversy is the contested nature of Muslim religious authority. Who exactly speaks for the Shariah? Whose interpretation of the Shariah is to be held by Muslims as normative and binding? If contradictory positions are offered on a particular legal issue by different Muslim sects based on their different understandings of the Shariah, what is the criterion to decide between them? Each Muslim sect claims to represent normative Islam. Each claims to be based on the Koran and the Sunnah, the path of the Prophet Muhammad, and asserts its own understanding of the Shariah as authoritative. Each sect’s claim to representing normative Islam includes an inbuilt rejection of the claims of other sects. Consequently, polemics between the ulema of different sects are often centred on diverse understandings and interpretations of the Shariah on a range of issues, as the controversy over the Imrana affair well illustrates.

In the wake of the Imrana controversy, numerous ulema belonging to different sects have expressed their respective views on the issue of a woman raped by her father-in-law in the columns of the Urdu press. They seem to be agreed that the issue is essentially a religious one, which requires a religious, that is to say, a Shariah-based response. As Maulvi Jameel Ahmad Ilyasi of the self-styled All India Imams’ Organisation, insists, "This is a purely religious question." Or as Maulvi Muhammad Saeed Mazhari, chief administrator of the Madrassa Mazahirul Uloom Waqf, Saharanpur, argues, "The Imrana case can be solved only on the basis of the commandments of the Koran. It is a purely Shariah-related issue. It is not a political or social matter that one can garner public support to solve it through strikes and demonstrations."

Because the Imrana case is projected by the ulema as a religious issue and not simply a case issue of gender injustice or violation of human rights, they insist that they alone have the right to solve it. Insisting that the ulema have the prerogative to deal with the case, the Deobandi scholar Maulvi Mubin Akhtar Qasmi of the al-Mahad al-Qazi, New Delhi, says, "It is not advisable for ordinary people to issue statements on the Imrana case. The ulema have provided full guidance on every sort of burning issue […] They are aware of international affairs and have full capacity of giving the right decisions."

Other than the ulema, no one else, not even the courts ought to "interfere" in the Imrana affair, some ulema appear to believe. Thus Maulvi Muhammad Ahsan Qasmi, deputy mufti of the Darul Uloom Waqf, Deoband, asserts that if the courts counter the Deoband fatwa and decide that Imrana’s marriage remains intact despite her having been raped, it will be "construed as interference in religion" since such a decision would be opposed to "the clear commandments of the Koran". In such a case, Imrana will have to decide whether to accept the verdict of the court or "bow her head before the Koran and the commandments of the Shariah". Similarly, Maulvi Habib ur-Rahman Khairabadi, chief mufti of the Darul Uloom, Deoband, defends the fatwa calling for the dissolution of the marriage of a woman raped by her father-in-law and opines that if the issue is taken to the courts "we think that keeping in mind the All India Muslim Personal Law Board they will come to the same decision and give a verdict in the light of this." He sees the issue as being "directly related to the Koran", and insists that "a matter clearly specified by the Koran cannot be debated". In other words, he appears to insist, the Deobandi interpretation of the Koran on the matter of a woman raped by her father-in-law simply has to be accepted by the courts.

Because Imrana is a Muslim, the ulema argue, she must abide by whatever the ulema claim that the Shariah lays down. As the Deobandi Maulvi Muhammad Saeed Mazhari writes, "If Imrana was raped by her father-in-law, she has been oppressed and he is a tyrant, but the matter does not rest here. The matter is not simply about this, but is also about the principles and laws of the Shariah. A Muslim has no freedom to decide on his own. Allah says that Muslims must observe Islam fully, and so they must not do anything that goes against the Shariah. Imrana, too, will obey the Shariah, and indeed, has expressed her willingness to do so after the Deoband madrassa issued its fatwa."

Yet, despite insisting that the question demands a Shariah-based answer that only the ulema can provide, and despite arguing from within the same Shariah-based discourse, the writings of the ulema of different sects on the Imrana issue express strikingly different conclusions, amply illustrating the ambiguity of what is traditionally understood as Shariah as well as the significant sectarian differences on precisely what the Shariah is thought to lay down on numerous substantive matters.

Most Indian Muslims are associated with the Hanafi Sunni school and articles and statements by several Hanafi ulema have appeared in the Urdu press on the Imrana case. Since the Hanafi school interprets the Shariah as ordaining a woman’s marriage annulled if she is raped by her father-in-law, almost all the Hanafi ulema writing on the subject have repeated this position and have fiercely supported the Deoband fatwa. Interestingly, support for this position has been expressed by both Barelvi as well as Deobandi ulema, bringing together the two major groups of Hanafis who otherwise see themselves as bitter enemies.

The Hanafi position, which is what the Deoband fatwa is based on, is explained in a lengthy article by Maulvi Yasin Ahktar Misbahi, a noted Barelvi scholar. He cites a Koranic verse that forbids a man from marrying a woman whom his father had married. He uses this verse to conclude that this also means that a man is forbidden to remain married to a woman who has had sex, whether consensual or forced, with his father. Hence, he lays down, Imrana’s marriage has been dissolved and she can no longer live with her husband. She is, in other words, haram (forbidden) for him, as well as for her father-in-law. "Just as if a drop of alcohol or urine is dropped into a glass of water, whether accidentally or deliberately, the water is rendered impure," he writes, so, too, "if a woman has sex with her father-in-law, even if through rape, she can no longer remain the lawfully wedded wife of her husband." He insists that this edict is not his personal opinion. Rather, he claims, this is what the Koran itself ordains, a position that, he adds, is firmly supported by various classical books of Hanafi jurisprudence. Further clarifying the Hanafi position, Mufti Mukarram Ahmad of Delhi explains that if a man so much as touches any part of his daughter-in-law’s body with lust, her marriage to her husband is dissolved. How then, he asks, defending the Deoband fatwa, can a woman raped by her father-in-law remain married to her husband?

If the Hanafis insist that the Shariah demands that a woman’s marriage be dissolved if she is raped (or even, as Mufti Mukarram tells us, simply touched with lust) by her father-in-law, other ulema, non-Hanafis as well as some dissenting Hanafis, tell a different story. The Urdu press has also highlighted the views of scholars associated with the Sunni Ahl-i Hadith and the Jafari Shia sects who have come out in opposition to the fatwa. These scholars claim that according to the Shariah as they understand it, the marriage of a woman raped by her father-in-law still remains intact. No matter who rapes a woman, writes Maulvi Syed Nasim Abbas Abidi, principal of a Shia madrassa in Uttar Pradesh, her marriage is not affected. Likewise, Maulvi Asghar Ali Imam Mahdi, general secretary of the Markazi Jamiatul Ahl-i Hadith argues that through a forbidden (haram) act like rape, a legitimate (halal) relationship like marriage cannot be made haram. To ordain divorce for a woman raped by her father-in-law, which is what the Deoband fatwa lays down, is to give her a "double punishment", which, he says, a "just religion like Islam cannot allow."

An influential critic of the Deoband fatwa is Maulvi Abdul Wahhab Khilji, a leading Indian Ahl-i Hadith scholar. He sees the fatwa as reflecting "intellectual stagnation" and "obstinacy" in following "self-made paths" instead of divine guidance, the Koran and the Hadith, sayings attributed to Muhammad. This is probably a reference to the Deobandis’ insistence on taqlid or strict conformity to the rules of medieval Hanafi jurisprudence, which the Ahl-i Hadith believe violates the Koran and Hadith on numerous counts. Maulvi Khilji insists that if Imrana had indeed been raped by her father-in-law, to claim, as the Deoband fatwa does, that she can no longer remain married to her husband, is to "go beyond the limits set by Allah, besides constituting a clear interference in the Shariah, because no haram act can make a halal thing haram." He points out that the Koranic verse used by the Hanafis to dissolve the marriage of a woman raped by her father-in-law refers to a ban on men marrying women whom their fathers have married. To claim that this implies that a man cannot remain married to a woman raped by his father, as the Hanafis believe, is, he writes, "against tradition and reason".

Maulvi Khilji’s opinion is seconded by a certain Qari Muhammad Miyan Mazhari of the Islamic Council of India, who terms the Deoband fatwa as "inappropriate, unjust and one-sided" and as having "ignored all the principles of Islamic jurisprudence". "It will promote doubts in the minds of people about Islam’s system of justice" and "give rise to a new conflict (fitna) in Muslim society," he warns, adding that "according to the Koran, those who create fitna are guilty of a crime worse than murder." He claims, as Maulvi Khilji does, that the Koranic verse that the Hanafis quote to justify their stance dissolving the marriage of a woman raped by her father-in-law is "not at all relevant to the case", as the verse forbids a man from marrying a woman whom his father had married and does not refer to rape at all. He argues that his position is supported by the Shafi and Maliki schools of Sunni law and the Jafari Shia school and suggests the possibility of Hanafi Muslims resorting to the opinion of one of these schools on the matter.

Maulvi Ikhlaq Husain Qasmi, who, from his title of ‘Qasmi’, appears to be of Deobandi background, also refers to the Shafi position in order to indirectly critique the fatwa. He claims that the Koran has appointed the husband as the head of the family and that, therefore, it is only the husband who can end the marital tie. Neither the woman nor any "evil deed", including rape, he says, can do so unless the husband also chooses to divorce his wife. Since marriage is a "blessing", it cannot be undone simply by an "evil deed" such as rape, no matter who the rapist is, so Imam Shafi is said to have argued, Maulvi Qasmi says with approval. He does not, however, go so far as to declare the Deoband fatwa as void.

The possibility that some ulema see in resorting to other schools of Islamic jurisprudence to resolve contentious issues, such as the rape of a woman by her father-in-law, on which the provisions of Hanafi law are seen as problematic, is, predictably, opposed by numerous diehard Deobandi ulema who defend the fatwa as being in consonance with Islam. This reflects both a deep-seated belief in the superiority of the Hanafi school as well as a concern to protect the power of the Deobandi ulema. It is clear that large sections of the Deobandi ulema believe that if Muslims are allowed to resort to other schools of law in difficult situations their own authority would be undermined. Some Deobandis, while agreeing to the theoretical possibility of resorting to other schools on certain contentious matters, lay down almost impossible conditions as a means to actually prevent people from doing so. Thus, Mufti Muhammad Ahsan Qasmi of the Darul Uloom Waqf, Deoband, writes that in order to resort to the ruling of another Muslim school on a particular matter there has to be a consensus of all the muftis (legal scholars) and ulema authorising this. However, in the Imrana case, he hastens to add, "in the face of the clear Koranic rulings, there is no possibility of this." In this way he insists that the Deoband fatwa is entirely in accordance with the Koran, ruling out the possibility of resorting to the Shafi or Maliki position in order to salvage Imrana’s marriage.

As the ulema writing in the Urdu press in defence of the fatwa see it, the Imrana case is being unfairly projected by what they call the "enemies of Islam" in order to sully the image of the faith. Islam, it appears to them, is surrounded by a vast number of mortal enemies out to destroy god’s own religion. Therefore, it is in constant need of being defended. Although this is not explicitly stated, what they see as their defence of Islam in the Imrana case is actually a concerted effort, in the face of fierce criticism, to justify their own interpretation of the Shariah that calls for the dissolution of the marriage of a woman raped by her father-in-law.

For these ulema, Hanafi jurisprudence becomes synonymous with Islam itself. In defending the fatwa from what its ulema supporters brand as the "enemies of Islam", the plight of Imrana is forgotten and the critique of their understanding of Shariah mounted by their opponents, rather than being engaged with, is dismissed as altogether worthless. Thus, Maulvi Salam Qasmi of the Darul Uloom Waqf, Deoband, labels the opposition to the fatwa as "an organised conspiracy" by elements who want to "paint a bad picture of the Muslim community and its religion". Maulvi Saeed Mazhari of the Madrassa Mazahirul Uloom Waqf, Saharanpur, accuses what he terms as "so-called freethinkers and enlightened people" of "shedding crocodile tears for Imrana" in order to "make fun of the pure Shariah" and to project "the ulema, who correctly interpret Islam, as an object of blame". Those who present themselves as Imrana’s sympathisers, thunders Mufti Muhammad Ahsan Qasmi of Deoband, actually want to "ruin her life in the Hereafter, after her life in this world has been ruined by her father-in-law". If Imrana were to act on their ill-conceived advice and remain with her husband, he warns, she would be guilty of violating the Koran and would have to suffer after death for this.

As the Hanafi defenders of the fatwa see it, there is simply no merit in the arguments put forward by their critics, both Muslims as well as others. The critique of the Hanafi position on the matter of a woman raped by her father-in-law is deliberately construed as an assault on Islam itself. In this way, arguments against Hanafi prescriptions that are patently anti-women are sought to be robbed of all legitimacy, even when these arguments are put forward by believing, practising Muslims. Thus, the redoubtable Ahmad Bukhari of the Jamia Masjid, Delhi, the self-styled Shahi Imam, decries the opposition to the fatwa as part of an "anti-Islamic agenda" that "seeks to prove that Islam cannot protect women". "In actual fact," Bukhari insists, "the opposite is true." "So-called intellectuals, legal specialists and self-appointed reformist Muslims," he adds, are using the Imrana case to argue that "there is need for reform in religion," but, he says, "according to the Koran, Islam is a complete religion and there is no need for any reform to it." Rather, he insists, it is the opponents of the ulema who need to be "reformed". Another strident defender of the fatwa, the Barelvi Maulvi Yasin Akhtar Misbahi, dismisses the critique of the Hanafi prescription as being a covert attempt to "defame the Shariah in the name of protecting human rights". Seeking to counter his detractors, he claims that the Shariah, which he appears to equate with the traditional Hanafi corpus of laws, lays down such rules to "protect" women as "are not even remotely approximated in other religions and ideologies". There is, thus, not an iota of merit in the arguments of the fatwa’s detractors, its ardent ulema defenders appear to argue.

Framing the Imrana case in solely religious terms, the ulema have sought to reduce it to a question of the Shariah, over which they claim to have expertise and the sole authority to pontificate about. But doing so has not made the controversy any less intractable. By their speaking in different voices about what precisely the Shariah says or does not say on the issue of a woman raped by her father-in-law, we are left grappling with the question of precisely what the great Shariah debate is really all about: the plight of Imrana and women like her or the authority and privileges of the ulema.