FATWAS, THEIR ACCEPTABILITY AND THEIR RELEVANCE
By Asghar Ali Engineer
(Secular Perspective September 1-15, 2005)
In last couple of months number of controversial fatwas has 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
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
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 rule- book 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 laborers 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 criticized but keeping these factors in mind. Mere condemnation will not do. One should also understand why such fatwas are acceptable.
Those who criticize 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-organize 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.
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 realize 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 minister ship. 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 realize 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 India and all of us are in need of reorienting our attitude towards women and their rights. Sooner we realize 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
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