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.
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.