Allama Niyaz Fatehpuri and his Faith - 30

IS RELIGION FROM GOD OR MAN-MADE?

Books and Documents 03 Mar 2009, NewAgeIslam.Com

The War Within Islam: Niyaz Fatehpuri’s Struggle Against The Fundamentalists by JUHI SHAHIN

Excerpts from a newly published book in Pakistan: The War Within Islam: Niyaz Fatehpuri’s Struggle Against The Fundamentalists

URL: http://www.newageislam.com/NewAgeIslamArticleDetail.aspx?ArticleID=1221

Late. Allama Niyaz Fatehpuri [1884-1966]

And religion because I was educated in a religious atmosphere and I got the opportunity to study the religious ulama. However, the whole colonial discourse of Islam being backward and medieval, was familiar to him and he kept trying to dispel this notion by saying that what the Ulama were saying and doing was not the only way to look at Islam. Fatehpuri was very clear about who was responsible for a state of affairs in which asking questions is tantamount to unbelief; it was the Ulama. Regarding the reluctance of the Ulama in particular, he stated: “There are many ways of avoiding Zakat in the books of fiqh, and many of our Ulama-i-Karam use them.”He ridiculed the artificial division that had been created between them by the Ulama, if one is religious, it should automatically mean that one is a good person, lives in harmony with others, and helps those in need. Arrogance is the antithesis of having Akhlaq – an attitude he observed in the Ulama, since they believed they knew best about the religion and its practices, and aggressively condemned any re-thinking. The Ulama-i-Karam who consider Muslims with bad Akhlaq to be Naji (free of sin). Most people would just find it easier to follow the ready-made solutions offered by the Ulama, rather than think for themselves. [New Age Islam]
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DRUNKEN TALAQ: HOW SOME FATWAS DISTORT ISLAM AND OPPRESS WOMEN BY A. FAIZUR RAHMAN MUSLIM PERSONAL LAW BOARD BETRAYS WORD, SPIRIT OF QURAN BY ARIF MOHAMMED KHAN The Darul Uloom Deoband and the All India Muslim Personal Law Board are in the news again for the wrong reasons — the former for issuing another misogynist fatwa, and the latter for supporting the former’s obscurantism. [New Age Islam]
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Part - 6

Religious Scholars - Ulama-i-Karam - Mullah - Mufti - Qazi - Muttawwa - Ayatullah - Mujtahids:

Yoginder Sikand

http://yogindersikand.blogspot.com/

Brouhaha over a fatwa Yoginder Sikand July 21, 2005 [read complete artilce at the end]

Triple talaq: counter–perspective BY YOGINDER SIKAND July 2004 [read complete artilce at the end]


Courtesy: Shaykh Muhammad Saalih al-Munajjid http://www.islam-qa.com/en

If a man divorces his wife three times with one word, such as saying, “You are thrice divorced”, the majority of scholars are of the view that the woman is indeed thrice divorced and becomes forbidden for her husband until she has been married to another man in a serious marriage in which the new husband has intercourse with her and they only separate as a result of death or divorce, not a tahleel marriage (i.e., a marriage of convenience aimed at making it permissible for her to remarry her former husband).

They quoted as evidence for that the fact that ‘Umar ibn al-Khattaab (may Allaah be pleased with him) counted such a divorce as being three and judged among people accordingly.

Other scholars were of the view that this is to be regarded as a single divorce, and the husband may take her back so long as the ‘iddah has not yet ended. If the ‘iddah has ended then she may marry him with a new marriage contract. They quoted as evidence for that the report narrated in Saheeh Muslim from Ibn ‘Abbaas (may Allaah be pleased with him) who said: “At the time of the Messenger of Allaah (peace and blessings of Allaah be upon him), the time of Abu Bakr (may Allaah be pleased with him) and the first two years of the caliphate of ‘Umar (may Allaah be pleased with him), a threefold divorce was counted as one. ‘Umar said: “People are being hasty with regard to a matter in which they should not rush. Let us count it as three and judge between people accordingly .” According to another report narrated by Muslim: Abu’l-Sahba’ said to Ibn ‘Abbaas (may Allaah be pleased with them): “Was not three counted as one at the time of the Messenger of Allaah (peace and blessings of Allaah be upon him) and the time of Abu Bakr (may Allaah be pleased with him) and the first three years of the time of ‘Umar (may Allaah be pleased with him)?” He said: “Yes,”

They also quote as evidence the report narrated by Imam Ahmad in al-Musnad with a jayyid isnaad from Ibn ‘Abbaas (may Allaah be pleased with him), that Abu Rakaanah divorced his wife by saying “I divorce you thrice”, then he regretted it, so the Prophet (peace and blessings of Allaah be upon him) returned her to him with one word and said, “This is only one (divorce).” This hadeeth and the one before it are to be understood as referring to divorcing by saying “I divorce you thrice”, in order to reconcile these two hadeeths and the verse in which Allaah says (interpretation of the meaning):

“The divorce is twice” [al-Baqarah 2:229]

“And if he has divorced her (the third time), then she is not lawful unto him thereafter until she has married another husband. Then, if the other husband divorces her, it is no sin on both of them that they reunite, provided they feel that they can keep the limits ordained by Allaah. These are the limits of Allaah, which He makes plain for the people who have knowledge” [al-Baqarah 2:230]

This was the view of Ibn ‘Abbaas (may Allaah be pleased with him) according to a saheeh report narrated from him; according to the other report narrated from him he shared the view of the majority. The view that they should be regarded as one divorce was narrated from ‘Ali, ‘Abd al-Rahmaan ibn ‘Awf and al-Zubayr ibn al-‘Awwaam (may Allaah be pleased with them).

This was also the view of a number of the Taabi’een, Muhammad ibn Ishaaq the author of al-Seerah, and a number of the earlier and later scholars. It was also the view favoured by Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allaah have mercy on them). This is also my view, because that is following all of the texts, and because it is also more merciful and kind to the Muslims. Fataawa Islamiyyah, 3/281, 282.

It seems that the qaadi was also of this view, which is that the threefold divorce counts as one divorce. Based on this there is nothing wrong with taking her back.

But after the ‘iddah is over you cannot take her back, rather you have to make a new marriage contract with her.

With regard to taking her back after the ‘iddah is over – i.e., after three menstrual cycles – this is not valid, because once a woman’s ‘iddah is completed she becomes a “stranger” for her husband and she is not permissible for him except with a new marriage contract. Fataawa Islamiyyah, 3/293

Shaykh Ibn Baaz was asked about a man whose wife treats him badly and insults him, so he divorced her at a moment of anger. He replied:

If you uttered the words of divorce at a moment of intense anger and without realizing it, and you could not control yourself, because of her bad words and insults etc., and you did that at a moment of intense anger and without realizing it, and she acknowledges that, or you have a witness of good character, then divorce has not taken place, because the shar’i evidence indicates that divorce does not take place if the words are spoken at a moment of intense anger – and if it is accompanied by not realizing what is happening then the ruling applies even more so.

For example, Ahmad, Abu Dawood and Ibn Maajah narrated from ‘Aa’ishah (may Allaah be pleased with her) that the Prophet (peace and blessings of Allaah be upon him) said: “There is no divorce and no manumission in the event of ighlaaq.” The majority of scholars said that ighlaaq means compulsion or anger, i.e., intense anger. For his anger made him unaware of what he was saying, so he is like one who is unconscious, insane or drunk, because of the intensity of his anger. So divorce does not take place in this instance. If he does not realize what he is doing and cannot control his words or actions because of the intensity of his anger, then divorce does not take place.

Anger may be of three types:

1 – When a person is angry and is no longer aware of what he is doing. This is likened to the insane, so divorce does not take place according to all scholars.

2 – Where a person is very angry but is still aware of what is going on, but his anger is so intense that it makes him say the words of divorce. In this case too, divorce does not take place according to the correct scholarly opinion.

3 – The ordinary type of anger which is not very intense. In this case, divorce takes place, according to all the scholars.

From Fataawa al-Talaaq, pp. 19-21, compiled by Dr. ‘Abd-Allaah al-Tayyaar and Muhammad al-Moosa.

What the Shaykh mentioned about the second type of anger is also the view favoured by Shaykh al-Islam Ibn Taymiyah and his student Ibn al-Qayyim (may Allaah have mercy on them both). Ibn al-Qayyim wrote an essay on that entitled Ighaathat al-Lahfaan fi Hukm Talaaq al-Ghadbaan, in which he said the following:

Anger is of three types:

1 – That which is not so intense as to affect a person’s mind or rational thinking; he knows what he is saying and what he means. There is no dispute that in this case divorce, manumission and contracts are valid.

2 – Where his anger reaches such a limit that he no longer knows what he is doing or saying. There is no dispute that in this situation divorce does not take place. If his anger is so intense that he does not know what he is saying, there is no doubt that none of his words should be implemented in this case. The words of the mukallif (adult of sound mind) are only to be implemented if he knows what he is saying and what it means, and if the speaker really means that.

3 – The kind of anger that falls between the two categories mentioned above, where the anger goes beyond the ordinary level but not so far as to make him behave like a madman. This is an area of scholarly differences of opinion. The shar’i evidence indicates that divorce, manumission and contracts in such cases are not valid, and this is a kind of ighlaaq as the imams explained.

From Mataalib Ooli al-Nuha, 5/323; see also Zaad al-Ma’aad, 5/215.

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"QUOTE"

Talaq-i-Bid'ah 1

Talaq-i-Bid'ah means innovated (or sinful) form of Divorce. It is defined as a divorce which is pronounced thrice in one sitting when the wife is in the state of purity (tuhr), i.e., when man says: "I divorce you, I divorce you, I divorce you." The Hanafis believe that though this form of divorce is sinful and innovative, it is nevertheless valid and divorce will take place. According to the Hanafis when triple divorce is pronounced, the wife will become totally alienated from the husband and he cannot remarry her. She becomes haram (totally prohibited) for him. Neither can he take her back nor can he go for fresh nikah with her. He can go for nikah with her only after she marries another person and that person divorces her on account of marital conflict or she becomes a widow.

According to Maulana 'Umar Ahmad 'Usmani this is the position of not only Abu Hanifa but also of Imam Malik and Shafi'i. Imam Shafi'i says this form of divorce is perfectly valid. It is not innovation (bid'ah). It is quite proper on the part of the husband to pronounce such a divorce. No husband can be prevented from adopting a valid course. Even Imam Ahmad Hanbal's position is the same as that of Imam Hanifa and Imam Malik. Thus it 'seems that all major founders of four schools of jurisprudence accept the validity of triple divorce.'

But Imam Taymiyyah has proved that Imam Ahmad bin Hanbal had retracted from his earlier position of accepting the validity of triple divorce and in a later period he used to say that when I reflected on the Qur'anic position I came to the conclusion that it permits only raj'i Talaq, i.e., divorce in which the wife can be taken back. He then took the position that even if someone pronounces triple divorce it should be treated as one only. The husband thus will have the right to take his wife back within the 'iddah period or go for nikah if the 'iddah period has expired. Imam Ahmad's companions and disciples also adopted this position. Many companions of the Noble Prophet like Ibn Abbas, Hazrat Ali, etc. also were of this opinion. Some have quoted companions like Abdullah bin Mas'ud, Abdur Rahman bin'Auf and Zuber bin al-Awwam also adopting this position. Ahl-e-Hadith also are of this opinion, i.e., that triple divorce is not valid. The Ithna 'Asharis (i.e., twelve Shi'as) and Imamiyas believe that if three divorces are pronounced together, even one divorce does not take place, let alone three. Even some Hanafi jurists like Hajjaj bin Artat and Muhammad Ibn Muqatil believe that if one pronounces three divorces, no divorce will take place.

Maulana 'Usmani tells us that according to Muhammad Muqatil one of the two opinions of Imam Hanifa was that only one divorce will take place if three divorces are pronounced. Similarly according to Imam Tilmisani Imam Malik also held the opinion that only one divorce takes place if three divorces are pronounced. Usmani also quotes from Hafiz Ibn Hajar's Fath al-Bari to the effect that many eminent jurists held that if one pronounces three divorces, only one take place.

From among the 'ulama of later period, Sheikh Shaltut, who was Sheikh al-Azhar, writes in his Fatwa that if one gives three divorces, only one divorce Talaq-i-raj'i will take place and the husband will have the right to take his wife back by saying so or by having sexual contact with her. Another prominent 'Alim 'Allama Rashid Rida' in his Tafsir al-Manar (Vol. IX, p. 683) has expressed a similar opinion. Another contemporary eminent, Arab 'Alim Shaikh Jamal al-Din al-Qasim has discussed this problem at great length in his book al-Istinas and has concluded that triple divorce has no validity and it should be treated as one divorce only. Quoting all these authorities Maulana 'Usmani says that triple divorce is not in keeping with the rulings of the Qur'an.

After quoting all these authorities Maulana 'Usmani discusses the whole issue in the light of the Noble Qur'an. He refers to the Qur'anic verse 2: 229-30, which begins with Al-talaqu marratan, i.e., divorce may be pronounced twice. He says the word marratan implies a gap between two pronouncements (all Hanafi jurists accept this), which means there should be a large enough time-gap between the two pronouncements of divorce. Marratan (twice) itself carries this sense. When we say "I went to your house twice but you were not there" cannot mean one went to his house twice in one go but after some reasonable gap of time. Once he went, he was not there, then again he went, he was not there. Thus the act of going had to be accomplished in two different periods of time. 'Usmani then quotes other verses of the Qur'an where the word marratan occurs and explains that everywhere it implies a gap of time in between.

The question is despite triple divorce being sinful, innovative and against the Qur'an will it occur if someone pronounces triple divorce? The second question is did anyone make such mistake (of pronouncing triple divorce) in Prophet's (pbuh) time and did he accept it as triple divorce? Or did he take it to be one divorce only? Lastly, when would the practice of triple divorce start again?

In the Qur'an, nikah is described as misaqan ghaliza, i.e., strong bond and has explained how and with whom one can enter into this strong bond and this strong bond cannot be dissolved without proper reason and method. It certainly cannot be dissolved whimsically. A man has to pass through different stages to bring about reconciliation either by persuading his wife to behave properly, or by appointing arbitrators as per Qur'anic injunctions (4:35). If all this fail only then recourse can be taken to divorce. Thus, according to the Qur'an, divorce is not an arbitrary and whimsical thing. The method prescribed by the Qur'an for divorce is that one can give divorce twice only, i.e., on two different occasions and then either he has to keep the woman with kindness or leave her with benevolence. In pre-Islamic Arab society they used to pronounce divorce even one thousand times and keep the sword of divorce hanging on her head. The Qur'an disallowed it and permitted pronouncement of divorce only twice. The Maulana says that even giving divorce in three periods of purity (pronouncing divorce once in every period of purity thrice is also not proved by the Qur'an and is thus prohibited. Once talaq is pronounced once, it takes place and woman goes out of marital bond at once and is now free to marry other man after completing the period of 'iddah. Why then pronounce talaq more than once? For what reason? Repeating the word more than once is just absurd, says the Maulana. Talaq should not be pronounced more than once in any case.

He then takes up the second question-whether anyone had divorced thrice in the Prophet's period? And did he accept it? He then quotes from Sahih Muslim, Imam Abu Da'ud, etc., to show that during the Noble Prophet's time, during Hazrat Abu Bakr's time and for two years during Hazrat 'Umar's time three divorces given at a time were taken as one divorce only. But after two years of his Khilafat period Hazrat 'Umar again enforced it (i.e., triple divorce) as people were misusing it and there were several complaints.

Maulana 'Usmani quotes from Musnad Ahmad Ibn Hanbal that once Rukanah pronounced three divorces against his wife but later he was very sorry for it. When the Prophet (pbuh) asked him, How did you divorce your wife? Rukanah replied that he had pronounced three divorces. The Prophet asked, Did you pronounce it in one sitting? When he said, Yes, the Noble Prophet said, Treat it as one divorce only and if you want you can take your wife back. And Rukanah took his wife back.

This hadith of the Prophet narrated by Ibn Abbas is found in Sahih Muslim, Sunan Abu Da'ud and other authentic collections of Hadith literature. No one has questioned its authenticity pertaining to marriage, divorce, inheritance or custody of children. In certain respects his views on the treatment of women differs radically from other traditional jurists. Also he bases his views entirely on the Qur'an and hadith, nothing else and comes to entirely different conclusions from many other noted traditional jurists. The Maulana has written his magnum opus Fiqh al-Qur'an in eight volumes. The book which is written in Urdu is a veritable treasure of Islamic jurisprudence though it is written in a traditional style and full of repetitions.

Maulana 'Usmani points out that Hazrat 'Umar had enforced triple divorce as triple divorce and it had become law. It is within the power of the caliph of the time to enforce certain ordinances in view of the prevailing situation, or to meet some crisis situation and no one can question it. It is, therefore, possible that Ibn Abbas might have given a fatwa accepting triple divorce after Hazrat 'Umar enforced the ordinance. The original hadith, accepting three divorces as one, therefore, is not affected, maintains 'Umar Ahmad 'Usmani. Thus it is proved by this hadith that during the time of the Noble Prophet triple divorce, if pronounced by someone, was accepted as one divorce only.

Then the Maulana takes up the third question- when did the triple divorce begin to be accepted as three divorces? It is well know that Hazrat 'Umar, after the initial two years of his Khilafat, had enforced triple divorce as triple divorce and no one will be permitted to take his wife back after pronouncing three divorces in one go. To substantiate his point the Maulana refers to the noted Egyptian historian Muhammad Husain Haykal's book 'Umar al-Farouq in which the author says that 'Umar made such an ijtihad (interpretation) in what is well established Qur'anic injunction in 2: 229-30 (Divorce is twice … which we have discussed in detail above) that until today we are opposing him in this matter. The Qur'an requires all attempts for reconciliation before a divorce (4:35)

Then Maulana 'Umar Ahmad further quotes from Haykal's book to show why Hazrat 'Umar was constrained to enforce triple divorce despite the Qur'anic injunction contrary to it. Muhammad Haykal says that when the Arabs conquered Iraq, Syria, Egypt, etc., the women prisoners from these regions were brought to Mecca and Medina. These women were very attractive and charming and the Arabs were captivated by their charm and wanted to marry them. But these women insisted on the men giving irreconcilable divorce to their former wives. To satisfy them they would pronounce triple divorce and pretend to having divorced their wives for good.

REFERENCES:

1. Maulana 'Umar Ahmad 'Usmani and Women's Rights in The Qur'an, Women and Modern Society, Asghar Ali Engineer, Select Books, India, 1999

Courtesy: Ibrahim B. Syed, Ph. D. President Islamic Research Foundation International, Inc. 7102 W. Shefford Lane Louisville, KY 40242-6462, U.S.A.
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Brouhaha over a fatwa Yoginder Sikand July 21, 2005

http://www.rediff.com/news/2005/jul/21guest.htm

The fatwa issued by a mufti of the Deoband madrasa dissolving the marriage of Imrana, mother of five, for having been allegedly raped by her father-in-law has, predictably, set off a major controversy.

Several Muslims have voiced their opposition to the fatwa, arguing that it is not in accordance with Islamic law or shariah as they understand it. This points to the deeply contested nature of the shariah, there being considerable diversity of opinion as to precisely what it mandates on a range of issues.

While the ambiguity of the shariah might lend itself to theological anarchy on occasion, it also allows for alternate, more progressive interpretations to be articulated that can challenge what, to critics, are regressive and obscurantist prescriptions. This is precisely what seems to be happening as a fall-out of the Imrana controversy.

Edict on Imrana unfair: Law expert

Given the strong sectarian divisions within the broader Muslim fold, it is not surprising that there is no consensus among the ulama of different sects as to the 'Islamicity' of the fatwa. Most Deobandi ulama and their rivals, the Barelvis, both adherents of the Hanafi Sunni school of jurisprudence, probably believe that the fatwa is in accordance with their version of Islam because this is what is prescribed in the books of classical Hanafi law.

The fatwa is based in a ruling by Imam Abu Hanifa, putative founder of the Hanafi school, that when a woman has sex after marriage with her husband she becomes the mother of all his children and so cannot marry his son, even though that son may be from a previous marriage.

The ruling includes the possibility that a daughter-in-law and her father-in-law may have an illegal sexual relationship, in which case also her marriage to the man's son would be invalid. It is on the basis of this argument that the Deoband mufti issued his fatwa annulling Imrana's marriage to her husband.

The fatwa has been critiqued by several Muslim scholars for its literalist reading of Hanafi prescriptions, without taking into account the particular context surrounding the case. For instance, Yawar Baig, a Bangalore-based Islamic scholar, writes that Abu Hanifa's ruling applies to a case of consensual sex, and not of rape. Hence, he says, Imrana cannot be punished for having been raped, and to do so would be to go against the intention of Abu Hanifa's ruling.

Similarly, a Deobandi scholar, a close friend of mine, who chooses to remain anonymous for fear of being hounded by his fellow Deobandis, tells me that by punishing the victim the fatwa defies the basic 'intention' (maqsad) of the shariah, which is 'justice' (adl), and hence cannot be considered Islamically valid.

He is bitterly critical of the 'blind following' (taqlid) of the Hanafi school on the part of most Deobandis, even in cases where Hanafi jurisprudence departs from the clear prescriptions or the underlying spirit of the Quran, as is clearly evident in this particular fatwa. The books of Hanafi jurisprudence, he says, were written centuries after the death of the Prophet, and are based on the opinions of Hanafi ulama, and are not necessarily in accordance with the Quran on every issue. Hence, he says, to place Hanafi jurisprudence over the Quran, as this fatwa appears to have done, has 'no justification at all'.

He insists that 'half-baked mullahs' with no understanding of social reality and contemporary demands should desist from issuing fatwas, and argues the need for ijtihad, or creative reinterpretation of Islamic jurisprudence in order to meet contemporary concerns. He laments that most of his fellow Hanafis, Deobandis and Barelvis, are loath to accept the need for ijithad, although ijithad is entirely in accordance with the commandments of Prophet Muhammad.

Notable ulama belonging to the Ahl-i-Hadith sect as well as some Shia scholars have argued that the fatwa has no sanction in the Quran or in the sayings attributed to the Prophet. Other scholars have pointed out that the fatwa does not receive support from the three other schools of Sunni jurisprudence, the Shafi, Hanbali and Maliki, which are regarded by the Hanafis as equally 'orthodox' in matters of belief.

According to the Shafi school, for instance, an act, such as rape, that is forbidden (haram) cannot establish or nullify something that is pure (halal), such as marriage. Critics of the fatwa have argued that no matter what the Hanafi position on the matter is, there is no harm if Imrana be allowed to resort to the equally 'orthodox' Shafi school for redress.

Resorting to another school of Sunni jurisprudence on a particular issue, they argue, would not constitute a radical innovation. After all, it was at the suggestion of the renowned Deobandi scholar, Ashraf Ali Thanvi, that the Muslim Dissolution of Marriage Act of 1939 was passed that bypassed the Hanafi rule that apostasy annuls a marriage in order to prevent Muslim women seeking a divorce from abandoning Islam.

The Act, which received the approval of most Indian Hanafi scholars, allowed a Muslim woman to obtain a judicial divorce on grounds permitted by the Maliki school without having to convert to another religion. There is thus no reason, critics of the fatwa argue, that in the Imrana case help cannot be sought from another school of Sunni law if it will help secure justice for her. Whether or not the Deobandis, strictly wedded to the Hanafi school, will concede this just demand remains to be seen.

While the opposition to the fatwa on the part of numerous Muslims is heartening to note, it is possible that, despite this, the controversy faces the risk of being turned into a communal issue, with Hindutva spokesmen using it in order to attack Muslim Personal Law.

Presenting themselves as 'saviours' of 'oppressed' Muslim women, they conveniently overlook their supporters' role in the mass murder and rape of Muslim women and the Muslim women left widowed and destitute in one pogrom after another. The controversy is also being sensationalised all out of proportion by the 'mainstream' press, ever on the prowl for stories of the 'oppressed' Muslim woman, who is used as a foil to 'prove' to the world how 'modern' the Hindu woman is in contrast.

It is striking how mild, in comparison, the indignation of the press is to similar or worse stories of oppressed 'Hindu' women, to sati deaths, dowry-killings, girl child sacrifices to appease bloodthirsty goddesses, 'low' caste women killed or raped by 'upper' caste goons or spouses being killed by caste panchayats for daring to marry outside their caste.


In the brouhaha that the press, obdurate mullahs, Hindutva-walas and 'secular' politicians are all so taken up with, Imrana, like the hapless Gudiya and Shah Bano before her, risks being turned into a pawn in a larger, murky political game. And just as Shah Bano and Gudiya have long since been forgotten, Imrana and her plight might soon vanish from our conscience.

Yoginder Sikand has written several articles on Islam and Muslims in contemporary India. The views expressed are his own.

Triple talaq: counter–perspective BY YOGINDER SIKAND July 2004

http://www.sabrang.com/cc/archive/2004/july04/cover10.html

The recent meeting of the All India Muslim Personal Law Board (AIMPLB) at Kanpur had raised considerable expectations that the ulema associated with it, who exercise a powerful influence on Muslim opinion, would finally declare the obnoxious practice of triple talaq in one sitting to be null and void and therefore illegal. This, however, was not to be. In fact, it so transpires that the question of banning the practice of triple talaq was not even on the agenda of the ulema gathered at Kanpur. Leading Deobandi and Barelvi scholars, whose schools represent the majority among the Indian ulema, see the practice as Islamically valid and as an integral part of the Shari’ah. Hence, they insist, the practice cannot be scrapped, as that would allegedly be tantamount to interfering with divinely revealed laws. This opinion appears to be widely shared among the ulema associated with the AIMPLB, which explains the refusal of the Board to ban the practice despite considerable public pressure to do so.

The argument that the practice of triple talaq in one sitting is an integral part of the Shari’ah is hotly contested by a minority among the ulema, such as those belonging to the Ahl–i–Hadith, among the Sunnis, as well as by the Shi’as. This clearly points to the diversity of understandings of what precisely constitutes the Shari’ah, and to elements of human effort in the construction of notions of the Shari’ah itself, a fact that the conservative ulema themselves are reluctant to acknowledge. The refusal of the AIMPLB to ban the practice of triple talaq clearly suggests that one can hardly expect the ulema associated with the Board to take any bold steps in the future that might threaten to undermine the patriarchy that is sought to be provided with a suitable ‘Islamic’ gloss. The Deobandi ulema who dominate the Board are carefully groomed in a tradition of extreme patriarchy, as is evident from even a cursory reading of the fatwas and writings of their leading scholars. Hope for reform, therefore, lies in the writings and arguments of Islamic scholars from other schools of Islamic thought and jurisprudence.

One such school is the Ahl–i–Hadith, representing a small minority among Indian Muslims. In contrast to the Deobandis and the Barelvis, the Ahl–i–Hadith insist that Muslims need not be bound by the jurisprudential precedent of the early ulema, but, instead, should rely solely on the Koran and the genuine (sahih) prophetic traditions. They are rigid scripturalists and extreme literalists, sharing much in common with the Wahhabis of Saudi Arabia. Although their position on a range of issues is thoroughly reactionary and obscurantist (leading Ahl–i–Hadith scholars are on record as hailing the Wahhabi rulers of Saudi Arabia as representing the only ‘true’ Islamic regime in the world), on the question of triple talaq they adopt a somewhat progressive stance, declaring the practice as unequivocally illegal.

The Mumbai–based Maulana Mukhtar Ahmad Nadvi is a leading Indian Ahl–i–Hadith scholar. In his recently published Urdu book titled Talaq: Kitab-o Sunnat Ki Roshni Mein Tafsili Jai’za (‘Divorce: A Detailed Study in the Light of the Koran and the Prophetic Practice’), he writes that the practice of triple talaq was sternly condemned by the Prophet himself. The Prophet, he says, declared divorce to be the ‘most hateful’ of things allowed by God. He argues that Islam lays great stress on harmonious conjugal relations, and quotes a Hadith, or saying of the Prophet, in which Muhammad is said to have told his followers that the best among them was he who was best for, or towards, his wife.

He then goes on to describe the method of divorce laid down in the Koran and enforced by the Prophet. In case a dispute arises between husband and wife, Nadvi writes, they should first try to solve it through dialogue. If this does not work, the Koran instructs them to appoint one arbiter each from the family of the husband and the wife, who can try and resolve their differences. Only when this fails should they take the drastic measure of divorce.

In the Prophet’s time, Nadvi explains, divorce took the form of the husband uttering the word talaq three times, spaced over three consecutive menstrual cycles of the wife. During this period, the husband was to abstain from sexual intercourse with his wife, but was to keep her in the house and provide for her. In this way, the husband was given adequate time to seriously reconsider his decision to divorce. The first two talaqs could be revoked by the husband, but if the third talaq was pronounced during or at the end of the third menstrual cycle, the divorce was considered final and irrevocable. If the husband had sexual intercourse with his wife before uttering the third talaq in the third menstrual cycle, the previous talaqs were nullified.

Likewise, if he uttered the talaq at a time when his wife was menstruating, it would not be considered valid. In this regard, Nadvi relates that on one occasion a companion of the Prophet gave talaq to his wife while she was in menstruation. On learning of this, the Prophet ordered the man to take back his wife, and did not recognise the talaq. Nadvi also writes that at the time of the Prophet if a man uttered the word talaq more than once in one sitting, it was considered as just a single talaq.

This being the method of divorce at the time of the Prophet, it is considered to be in accordance with his sunnat, or practice, and hence is called talaq–i–sunnat. Since Muslims consider the prophetic practice a normative model for them to follow, Nadvi says, this is the method of divorce that they should adopt. No other method of divorce, he writes, can be considered binding, as that would be a violation of the sunnat. Nadvi devotes considerable attention to the practice of triple talaq in one sitting, arguing that it has no sanction in the Koran and in the traditions of the Prophet. Being, in Islamic legal parlance, a bida’at, or wrongful innovation, it is not part of the Prophet’s sunnat and hence cannot be considered as sanctioned in accordance with the Shari’ah.

In this regard, Nadvi refers to a saying of the prophet in which he strongly condemned all forms of bida’at, suggesting that those who created innovations in the faith were accursed by God. Since the practice of triple talaq in one sitting is a bida’at, he argues that those who practise or sanction it actually do so in violation of God’s will and hence are condemnable in God’s eyes. In fact, he stresses, the Prophet explicitly condemned the practice of triple talaq. He writes that once, when the Prophet heard that one of his companions, or sahaba, had sought to divorce his wife in this way, he was enraged and sternly admonished him, saying, "What, shall God’s book be played around with and I am present among you?"

Nadvi refers to another Hadith, according to which Rukana, a companion of the Prophet, once pronounced three talaqs in one sitting but later repented. He approached the Prophet for help and the Prophet told him that the three talaqs he had given amounted to only a single talaq and therefore he could go back to his wife if he wanted to. To bolster his argument about the illegality of three talaqs in one sitting, Nadvi further adds that not a single instance is reported of such a form of talaq being accepted by the Prophet as constituting a final, irrevocable divorce.

The talaq–i–sunnat method, Nadvi writes, was followed in the Prophet’s time, and this was continued under his successor and the first Caliph of the Sunnis, Abu Bakr. The second Sunni Caliph, ‘Umar, too, followed this rule, but in the third year of his reign he is said to have modified it and to have made three talaqs in one sitting as legally binding and as constituting an irrevocable divorce. If the couple divorced in this fashion wanted to reunite they could only do so by resorting to what is called halala: the woman would have to marry another man, this marriage would have to be consummated, the woman would have to take a divorce from her second husband and only then could she remarry her first husband. The ulema who continue to insist on the legality of this method of talaq, and who also sanction the practice of halala, rely essentially on this decision of ‘Umar.

As a Sunni, Nadvi does not challenge ‘Umar’s decision directly, but in order to argue that this method of divorce has no sanction in Islam he insists that this innovation was simply ‘Umar’s own personal opinion, or ijtihad, which cannot be held to supersede or overrule the explicit commandments of the Koran and the Prophet on divorce. He argues that ‘Umar intended this modification to be only a temporary measure, and simply as a means to address a novel situation that had arisen in his time when men were misusing their prerogative to divorce their wives.

It was, he writes, in order to stop men from abusing their right to talaq that ‘Umar decided to make three talaqs in one sitting a final, irrevocable divorce. By doing so, he intended to warn men of the grave consequences of the break-up of their families if they misused their right to divorce. ‘Umar’s ruling was thus intended to protect women rather than harass them although today this ruling is being used precisely to serve the latter purpose. Nadvi insists that this constitutes a flagrant violation of Islam and here quotes the Prophet as imploring for God’s wrath on those men who misuse their right to divorce.

Nadvi opposes the view of many traditionalist scholars who claim that ‘Umar’s decision was unanimously agreed upon by all the sahaba, or companions, of the Prophet present. He insists that ‘Umar’s decision does not constitute an ‘ijma, or collective consensus, of the sahaba, which is evoked as a principal source of law by the ulema. He cites the instances of several leading sahaba who dissented from ‘Umar’s decision in this regard, including, and most importantly, ‘Ali, the fourth Caliph of the Sunnis and the first Shi’a Imam, ‘Abdullah ibn Abbas, Zubair ibn Awam and ‘Abd ur–Rahman ibn Awf. Following them, several of their followers, too, differed with ‘Umar on this issue. In fact, Nadvi writes, there has never been any ‘ijma on three talaqs in one sitting as constituting a final, irrevocable divorce.

Numerous ulema down the ages to the present day have opposed this position, strongly criticising those ulema who hold the contrary opinion for upholding what they consider as a bida’at. Nadvi writes that among those who dissented from ‘Umar’s decision of considering three talaqs in one sitting as constituting a final divorce were such leading Islamic jurisprudents as Imam Ahmad ibn Hanbal, founder of the Hanbali school of Sunni jurisprudence, several followers of Imam Malik and Imam Abu Hanifa, founders of the Maliki and Hanafi schools of jurisprudence respectively, the influential scripturalist reformist Ibn Taimiyah and his disciple Imam Ibn Qayyim al–Jawziya.

Having thus proved the absence of any ‘ijma on ‘Umar’s decision, Nadvi writes that Muslims must accept the sunnat of the Prophet and the practice of Abu Bakr rather than ‘Umar’s opinion on the matter of talaq. The Prophet’s sunnat, and not that of his Caliphs, has normative authority for Muslims, and if any of the Caliphs departed from the Prophet’s tradition, Muslims must follow the Prophet and not the Caliphs in this regard. Furthermore, as the first Caliph of the Sunnis, Abu Bakr had more authority than ‘Umar, and so his practice in the matter of talaq, which was identical to that of the Prophet, must be followed, instead of ‘Umar’s opinion.

Umar’s ijtihad cannot be considered, Nadvi stresses, as constituting a permanent modification of the Shari’ah, which cannot be changed. The only unchangeable sources of law, he says, are the Koran and the genuine Hadith, and both these set out the sunnat method of talaq, which, therefore, must be strictly adhered to. Since ‘Umar’s opinion on talaq departs from the Koran and the genuine Hadith, it cannot be accepted as a legally binding decision. Furthermore, Nadvi writes that since it is argued by those who defend ‘Umar’s rule that it was intended as a punishment (ta’zir) for erring husbands, one must raise the question as to whether this decision has proved to be adequate or suitable for the purpose. Since it is today being used largely to harass hapless wives instead of punishing oppressive husbands, it does not serve its original purpose at all and hence must be banned, Nadvi insists.

The conservative ulema, Nadvi observes, depart from the sunnat of the Prophet not only on the issue of triple talaq but also on a range of other issues related to talaq that impinge on the rights of Muslim women. Thus, he notes, many ulema (and these include most Barelvis and Deobandis) insist that talaq uttered by the husband while drunk or while asleep, in a fit of anger or while under coercion, is binding. This, Nadvi insists, is completely at odds with the teachings of the Prophet. He writes that talaq given under coercion has no recognition or validity, for the Koran explicitly lays down that there can be ‘no coercion in religion’. Just as if a person is forced to utter ‘words of infidelity’ (kalimat-i kufr) he is not considered to have become a disbeliever, or if a non-Muslim is forced to utter the Islamic creed of confession he is not considered a Muslim, so, too, if a man is coerced into pronouncing talaq, it has no validity in law.

Similarly, Nadvi writes, if a person pronounces talaq in a state of drunkenness or insanity, it is not to be considered valid, for he is at that time not in possession of his senses. To back his argument, he refers to a Koranic verse which warns people not to pray while drunk, and to worship only when they know what they are saying. This implies, he says, that God does not regard a drunken man’s utterances of any value. Similarly, using the same logic, Nadvi opposes the argument of those ulema who claim that talaq uttered in a fit of anger, when the man does not know the consequences of what he is saying, is binding.

On the question of halala, too, Nadvi stiffly opposes the Deobandi and the Barelvi ulema. He writes that the practice is abominable, and goes so far as to equate it with adultery (zina). He says that it has no sanction whatsoever in Islam, quoting the Prophet as having invoked God’s anger on those who engaged in the practice. He adds that there is an urgent need to promote popular awareness about halala and its seriously deleterious consequences, especially for hapless women who are sometimes subjected to this practice.

The practice of talaq–i–bida’at and the associated practice of halala, Nadvi writes, are sought to be legitimised by influential sections of the ulema by evoking the notion of jurisprudential precedent. They claim that since the founders of the schools of Sunni jurisprudence and several of their followers upheld these practices, they cannot be rescinded. This, indeed, is the position taken by most Deobandi and Barelvi ulema in India today. Nadvi stiffly opposes this argument, arguing that the founding Imams of the four schools never claimed infallibility for themselves. Indeed, he adds, they went so far as to insist that if any of their opinions violated the Koran and the genuine Hadith, they were to be rejected, and the latter were to be followed in their place.

Since the practice of accepting triple talaq in one sitting as constituting a final divorce and the associated practice of halala violate the Koran and the genuine Hadith, Nadvi says, those who claim to be faithful adherents of the established schools of jurisprudence, and this includes the Deobandis and the Barelvis, must follow the position of the Koran and the genuine Hadith in this regard if they are to be considered true followers of their Imams. To refuse to do so, Nadvi asserts, is absolutely forbidden (haram). Those who continue to uphold the practice of triple talaq in one sitting and justify halala are thus, he says, ‘grave sinners’ (sakht gunehgar) in God’s eyes. Leading ulema in several Muslim countries, such as Saudi Arabia, Qatar, Kuwait, Egypt, Sudan and Syria have outlawed triple talaq in one sitting and halala on Islamic grounds, and Nadvi insists that there is no reason why the Indian ulema should not do the same.

Another Indian Ahl–i–Hadith scholar who has written on the vexed issue of triple talaq in one sitting is the Kuwait-based Hafiz Muhammad Ishaq Zahid. In his Ahl-i–Hadith Aur Ulema-i Harimayn Ka Ittefaqi Ra’i (‘The Consensual Opinion of the Ahl–i–Hadith and the Ulema of the Holy Cities’), Zahid makes much the same arguments as Nadvi. He adds that ‘Umar’s opinion has no legal status since ‘Umar himself later revoked it. On the question of the alleged ‘ijma of the sahaba on ‘Umar’s ruling, he follows Nadvi in dismissing this claim, and goes so far as to label it ‘baseless propaganda’. He writes that even the conservative ulema who claim an ‘ijma of the sahaba on ‘Umar’s opinion agree that prior to ‘Umar there existed an ‘ijma on Abu Bakr’s opposition to triple talaq in one sitting and on his insistence on the talaq-i sunnat method. The ‘ijma of the sahaba in Abu Bakr’s time has more legitimacy than the alleged ‘ijma in Umar’s time, says Zahid, for the Sunnis believe Abu Bakr to have been superior to ‘Umar. Hence, the ‘command’ (hukm) of ‘Umar cannot be held to overrule the ‘ijma of the sahaba in Abu Bakr’s time on the matter of divorce, especially since it was identical to the Prophet’s own opinion.

Likewise, Zahid, adds, the fourth Caliph of the Sunnis, Hazrat ‘Ali, did not accept ‘Umar’s ruling on triple talaq, and hence the alleged ‘ijma cannot be said to have been accepted after ‘Umar as well. In actual fact, says Zahid, ‘Umar’s decision was his own personal ijtihad, not a legal order based on the Shari’ah. The ijtihad of a person is not binding on anyone else and has no validity if it goes against the explicit commandments of the Koran and the genuine Hadith. Furthermore, a person’s ijtihad cannot be regarded as permanently binding, for a rule derived from ijtihad changes with change of time or place (zaman-o makan), and lacks permanent status, unlike the Koran and the sunnat of the Prophet. For these reasons, Zahid writes, the ruling of ‘Umar has no legal binding. Instead of following it, Muslims must follow the method of divorce laid down in the Koran and enjoined upon by the Prophet.

The Ahl-i Hadith are not alone in their opposition to the stance of many Deobandi and Barelvi ulema and the AIMPLB on the question of the practice of triple talaq in one sitting. Numerous Muslim reformers have lent their voice to the demand that the practice be outlawed. Yet, blind adherence to the established schools of jurisprudence as well as deeply entrenched patriarchy continue to pose a major hurdle in coaxing the conservative ulema to agree to ban the practice. As the refusal of the AIMPLB to condemn the practice suggests, the conservative ulema seem to be in no mood to listen to the voice of reason or even to arguments that insist that their own position on the issue has no legitimacy in Islam itself.

(Yoginder Sikand is head, Centre for Studies on Indian Muslims, Hamdard University, New Delhi).