Women, ulema and fatwas

By Asghar Ali Engineer

MANY of our ulema and theologians usually claim that Islam has given the highest position to women, but having said so they still treat women just as man’s property.By doing so they go against all Quranic positions on women and apply all their medieval values and juristic formulations to degrade women and make Islam a laughing stock. A recent case in point is the treatment being meted out to women by the Taliban in Swat. There is concrete evidence for what I am saying.I have long been fighting for women’s rights as given to them by the Quran, and have succeeded in convincing many Muslim women who thought that Islam was a source of oppression for them and hence their salvation lay only in secular laws. By quoting extensively from the Quran I convinced them that Islam gives them an equal status with men. But some ulema keep negating all this by issuing fatwas to the contrary.Recently I came across two fatwas from the Darul Ulum Deoband, which is among the most respectable Islamic institutions and can even rival Al Azhar. One of their fatwas says that if a man takes a second wife and his first wife resents her husband’s decision and is not happy with the new wife, the second marriage stays valid. Thus, a man can take a second wife. Period.Another fatwa is about divorce. It says if a man types an SMS to his wife with the intention of divorcing her but does not send the SMS for some reason even then divorce will take place simply because he typed the SMS with the intention of divorcing her. I really find this shocking beyond belief. Does it not amount to treating a woman as man’s property? I read one article by a respected scholar that when man unjustly divorces his wife Allah’s wrath descends on him and heavens above him begin to shake, Even then these ulema do not hesitate from issuing such fatwas. Which position is right? Why such glaring contradictions in the approach of our ulema? Can the two positions ever be reconciled? Our jurists and religious leaders need to answer these questions.The Quran never treats polygamy as a licence for men to marry up to four wives, as many of the ulema will have you believe. There are strictest possible conditions and two verses on polygamy, 4:3 and 4:129, when read together, clearly imply that one should not take a second wife as and when one likes. It should be only in the rarest of rare cases and that too under strict conditions. Justice is a must. And, then, how can a marriage without the consent of the first spouse be valid if justice is to be done? Pakistan’s law requiring the wife’s permission for a second marriage is fully justified.The traditional ulema only inquire about the number of wives one has before performing another nikah, and never ask as to why a man wants to take another wife. The Quran on the other hand requires a thorough inquiry as to why one may be taking another wife to avoid injustice being done to the existing wife. It should never be permitted if no need to take a second wife is established. According to a proper reading of both the verses of the Quran on polygamy, it is as good as banned.For divorce, too, the Quran first of all requires an attempt at reconciliation between husband and wife. Along with the husband, the wife has also been given the right to appoint her own arbitrator and the two arbitrators together can decide after hearing both the parties whether divorce should take place or not. In most cases reconciliation can be effected. I think it is the most modern concept which all secular courts also resort to. Quranic formulations are quite compatible with the modern-day approach to marital disputes.But many of our ulema give more importance to a medieval interpretation by jurists over such formulations. It is important to note that the Quran, except in two verses, does not even use the words ‘husband’ and ‘wife’. Instead, it uses words like zawjain (couple), indicating a complete equality between the two. The words ‘husband’ and ‘wife’ imply that the husband has an authority over the wife and hence the Quran desists from using such terms.What is the way out? I think it is very important that those who are leading women’s movements should thoroughly acquaint themselves with the Quranic formulations and also obtain knowledge of factors like culture, feudal values, patriarchal social structure, etc., which contributed to the early formulations of the Sharia positions. The Quran is the word of Allah and binding on all. In the Sharia, on the other hand, there are many differences among scholars, and that is why so many schools of law exist among Muslims.I hope Muslim women will take the initiative and learn the Quran thoroughly well along with hadith literature, adopting an analytical approach towards the genuineness of the traditions and bringing about a change in Muslim women’s position. There seems to be no other way out.The writer is an Islamic scholar and heads the Centre for Study of Society and Secularism, Mumbai.