By A. Faizur Rahman
04 July, 2015
Even the Quran’s unambiguous commandment Wa’tasimu Bi Hablillah Hi Jamee’an Walaa Tafarraqu[1] (hold on firmly together the rope of Allah and be not divided) did not stop Muslims from dividing themselves into disparate denominations and sects soon after the departure of the Prophet. It all started with the political movement called Shi’ism (from Shi’atu Ali, the group of the Prophet’s son-in-law, Ali) which claimed that Ali and his descendents being from the family of the Prophet, Ahl al-Bayt, were his rightful successors and not the Caliphs who actually succeeded. This resulted in the main group of Muslims consolidating themselves - in a show of communal solidarity - under the name Ahl As-Sunnah Wal Jama’ah (the people of tradition and the community) from which came the name Sunni.
The Sunnis accused the Shi’atu Ali of breaking away from the community in violation of the teachings of the Prophet who was staunchly opposed to all forms of nepotistic sectarianism. But the Shias stuck to their claims and it eventually led to the metamorphosis of their separatism into a religious faction with its own subdivisions such as the Ghulaat, the Ismaailis (Seveners), the Zaydis, the Isna Asharis (Twelvers) and several more.
The Sunnis too could not remain unified for long. Tortuous interpretations of Islam triggered a flurry of doctrinal debates which led to the formation of various theological and legal schools (Mazaahib, sing. Mazhab) within a few decades of the Prophet’s death. But only four legal schools (Hanafi, Shafi’i, Maliki and Hanbali) have stood the test of time along with the Ibadhi sect, believed to be an offshoot of the Kharijiyya, which is found mainly in Oman.[2] Of the four schools, the Hanafi mazhab, established in Iraq by the great Iraqi jurist, Numan ibn Sabit, popularly known as Imam Abu Hanifa (d.767 AD), is the largest. It is followed in many parts of the world including Central Asia, Iraq, Syria, Jordan, Palestine, Turkey and Indian sub-continent.
Hanafism in India
Just as it was the school of choice for the Abbasid dynasty and the Ottoman Caliphate, Hanafism dominated India during the Mughal rule and before it. It was the “official religion” of the Muslim majority right from the time of the founding of the Mamluk (Slave) dynasty in 1206[3], thanks to the Hanafi Ulema who came along with the conquerors from Central Asia. These Ulema even while relying on the rulings of medieval Hanafi legal treatises such as the Hidaaya of al-Marghinani (d.1196,) produced their own collections of rulings to address the needs of their time. The most famous of them all was the Fataawa-e-Aalamgiri commissioned by Aurangzeb which is not just a collection of Fatwas, as the name suggests, but a comprehensive legal text of the Hanafi law.”[4]
The Muslims of India resented attempts to tamper with their religion. Because, for centuries they had been part of the ruling class in India, and their practices, both cultural and theological, were never subject to any kind of disruption. Thus when Emperor Akbar, a Hanafi, formulated Deen-e-Ilahi and persecuted orthodoxy he was staunchly opposed by the Ulema of his time. Giving a detailed account of this confrontation Pakistani historian I.H. Qureshi explains how two great Sufis Shaikh Abdul Haqq Muhaddis of Delhi and Shaikh Ahmad of Sarhind (who was given the title of Mujaddid-e-alf-e-Saani or, the man who revived Islam in the second millennium) raised orthodoxy “to a place of partnership in the Empire” although they could not restore it to “the position of undisputed authority” that it had enjoyed before Akbar’s attack.[5]
Attempts To Revive Muslim Rule
When the Mughal Empire after Aurangzeb started tottering it was thought that apart from the problems created by the Marathas, the “grave breakdown of public morality” among the Muslims and the “deep crisis in character” that they suffered from was the cause. It fell on Shah Waliullah (d.1762), the famous Hanafi scholar (and a Naqshbandi Sufi) from Delhi, to remedy the situation. Waliullah soon realised that it was extremely difficult for the Muslim Empire to recover from the death blow delivered by Nadir Shah in 1739 and therefore, sought to combine his reformism with military action to prevent the Marathas and the Jats from completely decimating the floundering Mughals. He wrote to the Afghan ruler Ahmad Shah Abdali to invade India to liberate it from the Marathas. [6] Abdali acceded to Waliullah’s request, perhaps also encouraged by similar messages from several Muslim states and nobles. This ultimately led to the historical Third Battle of Panipat in 1761 in which the Marathas suffered a humiliating defeat
Shah Waliullah had expected Abdali to build the Muslim Empire anew but Abdali had his own compulsions. According to Qureshi it was the withdrawal of Abdali after the Battle of Panipat that unwittingly paved the way for the establishment of the British rule in India through the East India Company because neither the emaciated Mughals nor the defeated Marathas were in any position to resist.[7] Thus, Shah Waliullah’s dream of reviving Muslim rule in India could not be realised. On the contrary, the situation deteriorated rapidly for the Muslims who now had to contend with the British. Waliullah’s son Shah Abdul Aziz (d. 1823) tried to carry his father’s revivalist movement further. He issued a controversial fatwa which declared that India was no longer Daar al-Islam (abode of Islam) as the British rule had rendered it Daar Al-Harb (abode of war). Qureshi opines, quoting from the Fatwas of Shah Abdul Aziz that, “This ruling brought it to the notice of the Muslim population forcefully that it was living in bondage. A legal implication of the ruling was that it was the duty of every Muslim to make all effort to restore such an area [India] to its former status of Dar ul-Islam. [8]
The Madrasa at Deoband
In pursuance of his endeavour to fight the British and restore Muslim supremacy Shah Abdul Aziz tried to groom Syed Ahmad, an activist from Rae Bareli (d. 1831). But Abdul Aziz’s efforts did not pay off. Even before any meaningful campaign could be mounted against the British Syed Ahmad was killed fighting the Sikhs at Balakot in 1831. As a result, the “Jihad Movement” gradually failed and was ultimately crushed by the armed might of the British Empire. And just when the “Mujahids” were giving up their cause the Rebellion of 1857 happened. It proved to be a godsend as it gave an opportunity to all those who had been biding their time to overthrow the British to come together and launch a simultaneous offensive against the exploitative colonial power. For the first time ideological and political opponents were seen making a common cause against the imperialists although they might have been motivated by self-interest.[9] But the events that finally led to the formation of the madrasa at Deoband happened in Thana Bhawan in the district of Muzaffarnagar, Uttar Pradesh.
Thana Bhawan was already a centre of Muslim education with Haji Imdadullah as its leading scholar. Qureshi gives an interesting account of how the Haji, when the rebellion broke out in the district, convened a meeting of the leading Ulema in Thana Bhawan and “organized jihad”, and how “the leaders made hasty preparations and marched against Shamli (a small town) and captured it.” Qureshi also informs that “the Mujahid forces were commanded by Maulana Damin Ali supported by Maulana Rashid Ahmad Gangohi and Maulana Muhammad Qasim Nanawtawi.”[10] But the superiority of the British forces decimates the “mujahids.” The leaders however make good their escape. Haji Imdadullah evades arrest by going away to Makkah but Rashid Ahmad gets arrested on suspicion of involvement in the uprising but is released six months later for lack of evidence.” [11]
The devastating outcome of the “Jehad” had a sobering effect on the reformist scholars. They realised the futility of armed resistance against the ruthless British and decided that the academic route was the best way to take on the colonialists. Their ultimate goal, however, was to create a community committed to both religious law and spiritual life by returning to the tradition of “the tongue and the pen” espoused by Shah Abdul Aziz.” [12] Accordingly, a plan was worked out to establish a madrasa on the lines of the renowned Madrasa-e-Rahimiyah which was founded by Sufi Shah Abdur Rahim, the father of Shah Waliullah, and from where Shah Waliullah himself had matriculated and taught under the guidance of his illustrious father. One of the reasons to follow the Rahimiyah model could have been that this madrasa had become defunct after its buildings were destroyed by the British in the aftermath of their reoccupation of Delhi in 1858. Thus, in May 1866, Darul Uloom came into existence in “a small sleepy township” called Deoband located in the Saharanpur district of Uttar Pradesh. Most prominent among its founders were of course, Maulana Muhammad Qasim Nanotawi (1832-1880) and Maulana Rashid Ahmad Gangohi (1828-1905).
Bastion of Hanafism
The seminarian creed of the Darul Uloom is best conveyed in its own words:
“If this track which has been obtained through the spiritual connections (Nisbats) of the predecessors and the successors is reduced to technical language, then in sum it is this that religiously Darul Uloom is Muslim; as a sect,Ahl-e-Sunnat wal-Jama'at; in practical method, (Mazhab), Hanafi'yat; in conduct, Sufi; dialectically, Maturidi Ash'ari; in respect of the mystic path, Chishtiyyah, rather comprising all the Sufi orders; in thought, Waliyullhian; in principle, Qasimiyah; sectionally, Rasheedian; and as regards connection, Deobandi."[13]
As is obvious, the administrators of Deoband are open about the fact that it was established as a Hanafi institution based on Shah Waliullah’s thought (some aspects of which were discussed above). And historians concur that one of the main objectives of Deoband was also to equip its graduates with the necessary knowledge to act as imams in mosques and, teachers in schools and colleges. [14] This was confirmed as recently as October 2012 by a Hanafi scholar, Mufti Obaidullah Qasmi, who said in an interview that madrasa students do not graduate to stand in the queue of job-seekers because, “Madrasas are established to produce scholars and experts to promote and protect Islam.” [15]
Surprisingly, for a school which prides itself in being reformist in outlook, that is, engaged in Tajdeed or revival of the original Islam as taught by the Prophet, Deoband’s inceptive raison d’être appears very narrow and ritualistic, perhaps even prosaic. It gives the impression that the great mission of the Prophet was aimed at creating employment for his followers as prayer leaders in mosques when in reality the comprehensiveness of the Prophet’s message was such that the influence of Islam was inherent in the cosmopolitanism of the Arab achievements. Historian Ira Lapidus writes, “Islamic ideas permeated a vast culture of poetry and belles-lettres, arts and sciences which was also the cultural expression of the new Muslim empire and societies.”[16]
It is only while exhibiting such an unprejudiced attitude towards scholarship that the Muslims made maximum progress, to the extent that an intellectual glitter surrounded their world while most of Europe was experiencing a phrenic blackout. Researcher Benson Bobrick couldn’t have summed it up better when he wrote: “In the tenth century, when London and Paris were still shabby towns, Cordova – “the mother of philosophers,” the “light of Andalusia” – was the most civilized city in the West. At the height of its glory, it contained 300 mosques, 200,000 houses, 50 hospitals, 70 library (including a main library with at least 225,000 volumes); excellent public baths; miles of paved streets illuminated at night; and a trained and talented population of surgeons, dress-masters, singing-masters, architects, and so on, who served Muslim communities from Barcelona to Navarre. In Cordova, it was said, ‘every boy and girl of twelve was able to read and write – at a time when the barons and ladies of Christendom were scarcely able to scrawl their names.’ ” [17]
When we compare the characteristics of ninth century Muslim institutions to those of the nineteenth century Darul Uloom Deoband the realisation of the astonishing semantic transformation the word uloom (plural of ilm) has undergone over a millennium hits us with a stunning force. As the foregoing discussion illustrates, the ninth century scholars understood ilm in its most comprehensive sense (to mean all forms of knowledge including religious knowledge) in keeping with the true spirit of its use in the Quran and Prophetic teachings. But within a few centuries, as petty doctrinal disputes gained ascendance, the meaning of ilm got restricted to “religious knowledge” thanks to the sectarian clergy for whom Islam was nothing more than an expression of their own school of jurisprudence (Fiqh). This perception is evident in the syllabus of Deoband which is based on the Hanafi curriculum called Dars-e-Nizami, prepared by the Aurangzeb-patronised scholar Mullah Nizamuddin of Firangi Mahal, Lucknow.
For instance, insofar as religious Fiqh (law) is concerned, students undergoing the eight-year course at Deoband study the following books: Noorul Izah, Qudoori, Sharah Wiqayah and Hidaya. [18] One does not have to be exceptionally perceptive to guess that all the four books are classical texts of Hanafi fiqh. Even the compendiums on principles of jurisprudence (Usool al-Fiqh)that form part of the syllabus, such as Tasheelul Usool, Usool as Shasi, Alfauzul Kabeer, Husamy, Manahilul Irfan and Musallemus saboot, are Hanafi works. In other words, a graduate of Deoband, who will enjoy the privilege of being called an aalim (an Islamic scholar) after completing the marathon eight-year course, would know very little on Islamic jurisprudence beyond the Hanafi point of view.
Scholar Waris Mazhari, a graduate of the Deoband madrasa, is severely critical of the curriculum of his alma mater. He thinks, “The syllabus is irrelevant and unable to meet the challenges of modern life” because of its outdated texts. He cites the example of Shara -i- Aqa’id, the six hundred year old theological treatise, taught in the seventh year at Deoband, and says that its archaic style, full of references to antiquated Greek philosophy, is beyond the understanding of students. It deals with “imaginary and hypothetical problems and verbal puzzles” such as the questions: “Is there one sky or seven or nine? Or, can the sky be broken into parts?”, and therefore, books such as Shara-i-Aqa’id , which are no longer taught in the schools in the Arab world, should be removed at once from the syllabus, although many conservative Ulema at Deoband would vehemently disagree. In the opinion of Mazhari, what madrasas need today “are books of theology that also take into account the confirmed findings of modern science.”[19]
In sharp contrast to the excessive prominence given to Hanafi fiqh, the Quran, despite its status as the locus classicus of Islam, is treated with perplexing superficiality at Deoband. In the first five years of study only its translation (“Tarjumatul Quran”) and short exegesis are taught. In the sixth year, the fifteenth century commentary Tafsir-e-Jalalayn is introduced along with some books on the principles of exegesis and jurisprudence. Quranic study is given a break in the seventh and eighth year but makes a comeback in the post-graduation classes under the head “Mastery in Tafsir.” Here again students get to learn only portions of the thirteenth and fourteenth century exegeses Baizaawi and Tafsir ibn Kaseer respectively. Thus it may not be wrong to conclude that Deoband’s approach to understanding the Quran, as evident from its curriculum, is narrow and does not encourage independent research.
The Fatwa Fixation
Perhaps this could be one of the reasons why institutions like Deoband have never produced or promoted pansophic scholars of the calibre of Ibn Rushd, Ibn Sina, Ibn Khaldun, al-Kindi, al-Farabi, Ibn al-Haytham, and al-Khwarizmi to mention just a few. Indeed, because of its obsessive Hanafi legalism, Deoband today stands accused of trying to control every aspect of Muslim life through Fatwas. Metcalf writes that the Deobandis assumed a position of great authority through their Fatwas which were, in a way, a manifestation of an urge to exercise power in the aftermath of the collapse of Muslim rule in India and the sense of powerlessness it created in the minds of Muslims. The idea was not only to guide Muslims on their religion but to circumvent the Anglo-Muhammadan law applied in the British-run courts. As a result, within a century of its formation Deoband had issued over 269,000 Fatwas. [20]
If the intention of the Deobandis was to simplify Islam for the Muslims, in most cases they ended up mystifying what was simple. One can regularly read Deoband Fatwas being reported in the press and heavily critiqued. The most recent instance being the media focus on the fatwa that declared photography to be “unlawful and a sin” and restricted its use “for an identity card or, for making a passport.” The fatwa was in response to a query from an engineering student who wanted to pursue photography as a career. Endorsing the ruling Mufti Abul Qasim Nomani, the present Muhtamim (Vice-Chancellor) of Darul Uloom Deoband warned the student saying, “Do not do this course. You should search any suitable job based on your engineering course.” [21]
This may not come as a surprise to those who were in the know of a similar fatwa issued in July 2010 which prohibited Muslim girls aged thirteen and above from, believe it or not, riding bicycles! At that time, Mufti Arshad Faruqui, chairman of the Darul Uloom fatwa department, justified it saying; “When a grown-up girl goes cycling outside her house, it is bound to result in Bepardagi[undue exposure]...Even medical science has given us evidence to believe that cycling is not good for adolescent girls, physically. Apart from affecting their feminity, it is harmful for their body structure.” The fatwa was roundly criticised by Muslims scholars including Maulana Khalid Rashid Firangi Mahali who said, “Muftis should desist from issuing such impractical advice.”[22] In this context, one is reminded of the statement issued by the Saudi cleric Sheikh Saleh al-Lohaidan on women driving cars which said; “If a woman drives a car, not out of pure necessity, that could have negative physiological impacts as functional and physiological medical studies show that it automatically affects the ovaries and pushes the pelvis upwards.” [23]
Deoband has also been criticised for saying that blood donation is un-Islamic on the grounds that human beings are not the “owners” of their body parts “to handle them freely.”[24] In another fatwa, Darul Uloom cited a seventh century safety requirement to rule that women can travel on their own only up to 48 miles. Beyond this distance they have to be accompanied by their husbands or a Mahram, that is, a person with whom marriage is illegal such as a father or brother;[25] to say nothing about the fatwa that asked Muslim girls to go by their parents’ choice on marriage for “according to some imams, the 'nikah' (marriage) of a girl who marries without the consent and permission of her guardian is ‘invalid’.” [26]
Fatwas of the aforementioned variety may be ignored without the Muslimness of the repudiator being brought into question. But certain other Fatwas, which have actually caused great hardship to women, are considered inviolable and Muslims are not allowed the liberty to openly disregard them. Take for instance the fatwa on triple Talaq. Deoband muftis have consistently held, on the basis of the Hanafi Fiqh, that divorcing a woman instantly by repeating the word “Talaq” thrice in quick succession, although “a severe sin”, is legal and irrevocably breaks the marriage. In fact, Deoband went beyond this and ruled that triple talaq pronounced in a state of drunkenness is also valid.[27]
This pronouncement is not just bad in law but also bad in theology, for it is not based on the Quran as expounded by Prophet Muhammad but entirely grounded in the Hanafi Fiqh which contains many provisions that are also repugnant to reason. For instance, according to Hidaya the wife of a missing or absconding husband can remarry only after a minimum of 90 years have elapsed from the day of his birth! [28]
On the issue of divorce by a drunken husband too, the reasoning is on similar lines. The Hidaya and other Hanafi books, including the oft-cited Al Radd al Muhtar of Ibn Abideen, state that if the liquor consumed has reached the prohibited level of intoxication (which is a subjective issue) then the Talaq uttered in such a state shall be held valid. It may be pointed out here that, according to a tradition in al-Bukhari, Ibn Abbas and Caliph Usman were of the view that Talaq under the influence of drink was not effective because of the incapacity of the drunken person to exercise reason. But Hanafi jurists of the medieval period, in a weak attempt to bypass this opinion, justified their ruling saying that it was only aimed at discouraging the use of liquor.[29] They did not bother to explain why the dissuasion of alcoholism should be at the cost of a marriage where, in most cases, the affected party is the hapless wife and her innocent children.
One may also be astonished to know that the Hidaya contains hair-splitting discussions on such improbable subjects as the validity of a divorce applied to any specific part of body such as the hand, foot, ear or nose; and partial divorce where the husband pronounces half a divorce on his wife. In the first case Hidaya rules that divorce does not take place while in the second, it is decreed that it amounts to one divorce. The explanation offered is; divorce is not capable of division and therefore, three half divorces would be equal to three divorces because each moiety amounts to one complete divorce! And there is more. What if a husband tells his wife “You are divorced if you enter so and so city”? According to the Hidaya divorce takes place on her entering that city.[30] It may be mentioned here that Hidaya is one of the books of Fiqh that is taught at Deoband.
Nonetheless, the Deoband fatwa on triple Talaq is flawed because of its inherent presumption that the pronouncement of three Talaqs in one sitting breaks the marital tie instantaneously. The truth is that the concept of instant triple Talaq is alien to Islam as it goes against the spirit of the procedure of divorce laid down in the Quran.[31] The philosophy of the Quran revolves around the principles of natural justice, fairness and equity, and hence, any law that contravenes or abridges the rights arising out of these standards of ethics is liable to be declared un-Islamic and therefore, void. This conclusion is supported by a report in Mishkaat al-Masaabih which states that the Prophet when he was informed about a man who gave three divorces at a time was so enraged that he said, “Are you playing with the Book of Allah, who is Great and Glorious, while I am still amongst you?” The Prophet’s exasperation serves as an admonition to Muslims to lead their lives in accordance with the “Book of Allah.” But the reluctance of Muslim theologians to amend their thought in line with the teachings of the Quran has led to a situation where courts in India, much to the disadvantage of women, are forced to uphold the validity of triple Talaq on the principle of stare decisis declaring the practice to be “good in law though bad in theology.”[32]
Order Or Opinion?
In July 2011 the Darul Uloom surprised everyone by speaking against the coercive imposition of Fatwas. Mufti Habib ur Rahman said that a fatwa is not an order but an opinion that seeks to guide Muslims and therefore, Muslims are free to abide by it or ignore it.[33] But Deoband’s Darul Ifta is not so sure. After certifying that “Fatwa means a ruling on a point of Islamic law given by a Mufti (recognized authority to interpret or expound Shariah -Islamic Jurisprudence, stretching from Beliefs and Prayers to Social Affairs, Transactions and Dealings” it goes on to assert the opposite saying; “Fatwas are just advice/guidance (from Islamic Shariah) and constitute no legal binding.”[34] It therefore becomes imperative to analyse a couple of Fatwas to check which of these two statements is true.
First, the tragic suffering that a young girl named Gudiya was made to undergo in 2004. Gudiya’s husband, an Indian army soldier, went missing in action during the Kargil war and was presumed dead. After waiting for four years (which is also what the Maliki Fiqh prescribes) Gudiya married another man. But her first husband, who had in fact been imprisoned by the Pakistanis, returned home after his release only to find his wife pregnant with the child of the second husband. In the ensuing confusion, religious leaders invoked the Shariah and Gudiya was pressurised into returning to her first husband in a televised Panchayat (a village council) meeting.[35]
According to newspaper reports, the leaders who helped Gudiya arrive at her decision included Maulana Wahiduddin Khan and Mufti Ejaz Arshad of Deoband.[36] It could of course be technically claimed that no official fatwa was issued against Gudiya or, if one was issued it was just an opinion. In that case, why was Gudiya forced to go back to her first husband and die a miserable death within months of her return after a series of illnesses?
The second example is that of Imrana, whose marriage was sought to be annulled by a Deoband fatwa, issued in June 2005, on the basis of her allegedly being raped by her father-in-law. [37] Mufti Habib ur Rahman of Deoband supported the ruling saying, “The Quran Sharief lays down: ‘Do not perform Nikah with a woman whom you father had bedded.’” That was a shocking interpretation. The relevant clause of this verse (4:22) reads, “...Wa Laa Tankihu Maa Nkaha Aabaaukum Minan Nisaayi” that is, “...and marry not women whom your fathers married.” No amount of semantic jugglery can render this clause as “and marry not women whom your fathers had bedded” because, the word Nakaha signifies marriage and not sex outside marriage, consensual or forced. The injunction in the verse was actually meant to abolish the pre-Islamic custom of men marrying their step-mothers after their fathers’ death which proves that the Imrana fatwa was gross distortion of the Quran. Yet, a desperate attempt was made to effect a separation between Imrana and her husband. If Fatwas are just opinions, why this fuss to enforce them?
The truth is, a fatwa is neither an opinion nor an advice. According to the Lane's Arabic Lexicon the word “fatwa” comes from the trilateral root fa-ta-ya and refers to “a notification of the decision of the law in, or respecting a particular case.” It also means to give “an answer or a reply stating the decision of the law, respecting a question.” In other words, a fatwa is a reply that notifies a legal order and therefore, the recipient has no choice but to comply with it. This can be understood better from verses 4: 127 and 176 of the Quran wherein Allah Himself issues a fatwa! It may be noted here that the process is the same; a query is raised and Allah responds with a fatwa.
3:127: “Wa Yastaftoonaka Fin Nisaa'i, Qulillaahu Yufteekum Fee Hinna...” (“And they seek your fatwa (Yastaftoonaka) concerning the women; tell them: Allah gives you the fatwa (Yufteekum)....
4:176: “Yastaftoonaka, Qulillaahu Yufteekum Fil Kalalati...” (“They seek your fatwa (Yastaftoonaka), tell them: Allah gives you the fatwa (Yufteekum) concerning Kalala...."
In both verses the word “fatwa” has been used in the terminological meaning of a decree which rules out the possibility of it being just an opinion or advice unless one believes that Allah’s injunctions are opinions too devoid of authority. If Fatwas were indeed scholarly opinions as claimed by some Ulema, Muslim women would have been free to reject all misogynist “opinions” particularly those that justify triple Talaq and marriage of minor girls.
Hanafism as Islamic Law
In 2001 an interesting compilation of the rules of the Shariah relating to Muslim personal law was published by the All India Muslim Personal Law Board (AIMPLB) under the title Compendium of Islamic Laws. It has 440 Sections arranged under six Parts. The preface of this book, written by the then AIMPLB President Qazi Mujahid ul Islam Qasimi, states that the first draft of the laws was prepared by Mufti Zafiruddin of Darul Uloom Deoband and finalised by a committee of experts which included Qazi Mujahid ul Islam. The puzzling aspect of this compendium is the claim that “it is based on the most authentic principles of Islamic law” even as the preface informs the reader that notes on every section of the compendium were drawn from “authentic books of the Hanafi law.”[38]
The presumption here is that books of Hanafi law are the only source from which the most authentic principles of Islamic law could be derived. No explanation is given as to why books of Sha’fii, Maliki, Hanbali or any other law were not consulted. In other words, this book is a compendium of laws inspired by and based on the Hanafi Fiqh. This is not surprising because most of its authors were products of Deoband including Qazi Mujahid ul Islam.
A cursory reading of the Compendium reveals the influence of Deobandi thought on its provisions. E.g. Sec. 5(b) of the Law of Divorce states ; “...if a person has unlawfully consumed an intoxicant by his own liking and habit, his Talaq will become effective by way of punishment” and, as per Sec 6, “If a person under compulsion or duress pronounces a Talaq it will be valid if it is verbal, but not otherwise.” Sec.7 rules that “A Talaq pronounced in hazl, i.e., jest, also becomes effective.” Sec. 13 prohibits Talaq-e-Bid’at (which includes triple Talaq) but declares that “it will be effective while the man will be guilty of a severe sin.” The legal validity of “a severe sin” may boggle many a mind, but it does not evoke any elucidation from the compilers of the Compendium. On the contrary, they go on to state in Sec. 24 that if a man repeats the word “Talaq” thrice with an intention to pronounce triple Talaq “as many Talaqs will be effective.”
The Law of Marriage too has many disturbing clauses. For instance, Sec.70 of this part defines guardianship as “the legal right due to which a person’s authority over another person is enforced without the latter’s consent.” Sec. 71 clarifies this further stating, “Marriage-guardianship is the legal authority due to which a person can contract a minor or a mentally handicapped person into marriage, without their consent, by his own will.” It goes without saying here that child marriage finds no sanction in the Quran or the teachings of the Prophet.[39] But what is astonishing is, the Hanafi law allows, in the name of Shariah, a father to marry off his mentally handicapped son or daughter. How such extreme provisions could form part of a compendium of Islamic laws is beyond comprehension.
Staying with marriage, the Compendium categorises marriages as equal and unequal. Sec. 117 states that “the boy” and “the girl” should be equals not just in terms of piety and faith but in financial status also to avoid causing “disgrace to the girl.” The section also rules that “Regard shall be had in respect of descent among the Arabs, especially the Quraish, and those non-Arab families who have preserved descent. People in the rest of the non-Arab Muslim world are mutually equal. On the basis of this principle a girl can get terminated her marriage to a non-equal contracted by her guardian; and a guardian has the right to terminate the marriage of an adult woman to a non-equal.” One wonders how this law of equality in marriage (kafa’at) is tenable in the light of the following declaration of the Prophet during his last sermon at Mina: “O people! Your Lord is one Lord, and you all share the same father. There is no preference for Arabs over non-Arabs, nor for non-Arabs over Arabs. Neither is their preference for white people over black people, nor for black people over white people. Preference is only through righteousness.”
The Twenty First Century Challenge
There can be no doubt that Deoband’s fossilised understanding of Islam had made it a byword for religious obscurantism today. This has happened despite the seminary issuing some excellent Fatwas condemning terrorism, asking Muslims to respect Hindu sentiments on cow slaughter, and terming India Darul Aman (a land of peace). It even condemned the “Russian diktat against the Hindu holy scripture” Gita. Sadly, these statements were not taken seriously by all perhaps because the negativity of Deoband’s controversial pronouncements far exceeded the goodness of its good Fatwas. It is time Deoband remedied the situation for several reasons. The seminary must remind itself that it has a role to play in twenty first century India just as it did at the time of Partition to keep this nation united. India is certainly not threatened with another division, but keeping the country united continues to pose a challenge. On the one hand we have Hindutva extremists constantly questioning the loyalty of Indian Muslims to their motherland, and on the other, a handful of Muslim extremists have taken to the path of violence to prove their point. This, coupled with the arbitrary incarceration of Muslim youth on charges of terror– later to be acquitted by courts of law – constitutes a major hurdle to social harmony in India. And lying in wait to exploit the atmosphere of mistrust that prevails against the Muslims are the cultural nationalists who are desperately trying to capture power with a view to making India a theocratic state. Indeed, there is a lurking suspicion among many that the recent riots in Muslim dominated areas were part of a nefarious plot to bully the Muslims into aligning themselves with the demands of the majoritarian agenda.
Given this situation, it is but natural for Muslims to withdraw themselves into ghettoes, both physical and psychological. And it is up to religious institutions such as the Darul Uloom Deoband to embark on a benignant campaign to prevent the Muslim from either leaving the mainstream or adopting a reactionary attitude. For that Deoband must be willing to re-assess its raison d’être and model itself on Quranic universalism rather than schismatic Hanafism. Certainly, an emaciation of its identity is not being suggested here. Just as the founders of Deoband were Hanafi, the present administrators too have the right to follow their school of thought. But the institution must not insist on teaching Hanafism alone particularly when some of its interpretations have caused great hardship to Muslim society. It must ponder over the fact that the founder of the Hanafi school, the great Imam Abu Hanifa, was a most liberal and flexible person. His Mazhab was praised by Allama Iqbal as possessing “much greater power of creative adaptation” than any other school of Muslim law.[40] Indeed it was the Imam Abu Hanifa who introduced the concept of Istihsan which helps jurists to depart from the existing precedent by taking decisions different from those on which similar cases were decided, for reasons stronger than those obtained in the past cases.
Applying Istihsan Deoband can completely overhaul its legal methodology and harmonise it with the intent of the Quran and Prophetic teachings just as Imam Abu Hanifa did. This entails a shift in focus from Taqlid (zealous imitation) to Ijtihad (a process by which law is deduced from the original sources). In doing so, Deoband will not only be following Imam Abu Hanifa, but opening up Islam to modern interpretations, of course, within the framework of its original sources. This would, in the long run, inculcate a sense of tolerance among Muslims for different points of view and equip them to respond positively to the requirements of a multicultural society like India. The question is: Is Deoband willing to walk this path?
Notes:
[1] Quran 3:103
[2] CIA-The World Fact Book- https://www.cia.gov/library/publications/the-world-factbook/geos/mu.html#People
[3] Aziz Ahmad, The Role of Ulema in Indo-Muslim History, Studia Islamica No:31 (1970), p.2
[4] Richard M. Eaton, India’s Islamic Traditions, 711-1750, Oxford University Press, 2003, pp. 212-214
[5] I.H. Qureshi, Ulema in Politics, Renaissance Publishing House, Delhi, 1985, pp. 74-98
[6] Ibid, pp.112-113
[7] Ibid, p. 114
[8] Ibid, pp. 138-139
[9] Barbara Daly Metcalf, Islamic Revival in British India: Deoband, 1860 – 1900, Oxford University Press, 1982, p. 81
[10] I.H. Qureshi, op. cit., pp. 201-202
[11] Francis Robinson, Islam and Muslim History in South Asia, Oxford University Press, 2000, pp. 143-144
[12] Metcalf, op. cit., pp. 87-88
[13] The Track (Maslak) of Darul Uloom: http://www.darululoom-deoband.com/english/
[14] I.H.Qureshi, op. cit., p. 222, Metcalf, op. cit., p. 100
[15] Madrasas produce maulvis, not jobseekers: http://articles.timesofindia.indiatimes.com/2012-10-28/mumbai/34779782_1_madrassas-darul-uloom-deoband-government-grants
[16] Ira M. Lapidus, A History of Islamic Societies, Cambridge University Press, 1988, p. 81
[17] Benson Bobrick, The Caliph’s Splendor: Islam and the West in the Golden Age of Baghdad, Simon & Schuster, 2012, p. 239
[18] The System of Education: http://www.darululoom-deoband.com/english/
[19] Quoted in Yoginder Sikand, Bastions of the Believers: Madrasas and Islamic Education in India, Penguin Books, 2005, pp. 152 -153
[20] Metcalf, op. cit., pp. 146-152
[21] The Times of India, September 11, 2013: http://articles.timesofindia.indiatimes.com/2013-09-11/india/41969729_1_deoband-issues-darul-uloom-deoband-photography
[22] The Siasat Daily, July 16, 2010: http://www.siasat.com/english/news/fatwa-against-girls-bicycle-riding
[23] BBC News Middle East, September 29, 2013: http://www.bbc.co.uk/news/world-middle-east-24323934
[24] Donating blood is un-Islamic: Deoband: http://articles.timesofindia.indiatimes.com/2010-11-24/india/28230052_1_blood-donation-body-parts-fatwa
[25] Go to: http://articles.timesofindia.indiatimes.com/2011-03-09/lucknow/28671867_1_fatwa-department-darul-uloom-deoband-darul-ifta
[26] Go to: http://articles.timesofindia.indiatimes.com/2011-03-02/india/28646221_1_choice-seminary-consent
[27] The Hindu, March 29, 2012: http://www.thehindu.com/news/national/deoband-talaq-given-in-a-state-of-drunkenness-valid/article3259035.ece
[28] Charles Hamilton, The Hedaya: A commentary on the Mussulman Laws, Kitab Bhawan, 1979, pp. 215-216
[29] Ibid, p. 76
[30] Ibid, pp. 77-78
[31] For a detailed analysis of the procedure of divorce see Islamic law of divorce by A. Faizur Rahman: http://twocircles.net/2011may11/islamic_law_divorce.html
[32] The precedent cited is the Privy Council Judgment in the case of Aga Mohammad Jaffer vs. Koolsom Beebee [(1897) 25 Cal.9, 18, 24, IA. 196,204] wherein it was held that it would be wrong for the courts to put their own construction on the Quran in opposition to the express ruling of commentators of “such antiquity and high authority.
[33] Go to: http://articles.timesofindia.indiatimes.com/2011-07-31/india/29835478_1_fatwas-darul-uloom-deoband-mohammed-vastanvi
[34] Darul Ifta – (Darul Uloom Deoband) – Information on terms of use: http://darulifta-deoband.org/showuserview.do?function=menu&all&forward=terms
[35] Gudiya, Kargil war victim: http://en.wikipedia.org/wiki/Gudiya,_Kargil_war_victim,
Love in a time of TV hysteria: http://www.theguardian.com/media/2004/oct/19/india.comment
[36] Gudiya:sub-text in a cultural context: http://www.sandhyajainarchive.org/2004/10/05/gudiya-sub-text-in-a-cultural-contest/
Gudiya makes her choice: http://www.hindu.com/2004/09/22/stories/2004092206951201.htm
[37] The Hindu, July, 2005: http://www.hindu.com/2005/07/01/stories/2005070114021400.htm
Text of the question and fatwa on Imrana: http://www.milligazette.com/dailyupdate/2005/20050706b.htm
[38] Compendium of Islamic Laws, All India Muslim Personal Law Board, 2001, pp. 3-4, For online version go to: http://aimplb.blogspot.in/2013/08/compendium-of-islamic-laws_27.html
[39] For a detailed analysis see Islamic law does not sanction child marriage By A. Faizur Rahman: http://www.thehindu.com/opinion/op-ed/islamic-law-does-not-sanction-child-marriage/article3520569.ece
[40] Sir Mohammad Iqbal, The Reconstruction of Religious Thought in Islam, Kitab Bhawan, 1998, pp. 176-178
A.Faizur Rahman is an independent Islamic researcher and the founder secretary-general of the India-based Islamic Forum for the Promotion of Moderate Thought.
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