Controversy in India

Daily Times, July 5, 2005

CONTROVERSY: Imrana rape case and fatwa controversy —Yawar Baig

If we accept this line of reasoning, then rape will have to be acknowledged as a way of establishing a marital relationship and all raped women would become the wives of the rapists without the necessity of nikah. That is obviously not logical

Muslims everywhere are faced with new challenges. Some of these, regrettably, are their own creations. The latest in this category is the double tragedy of Imrana in Uttar Pradesh, India. The first tragedy was the rape itself, compounded, of course, by the fact that the rapist was her father-in-law. To add to that a fatwa was issued by a mufti of Darul Uloom, Deoband, who seems to have ignored the spirit of the law while implementing it literally. The fatwa said that as a result of her father in law’s act, her marriage to his son (her husband) had become void.

This fatwa is based on Imam Abu Haneefa’s ruling that on having sex with a man she marries a woman gains the status of mother to all his children. As such, she cannot marry any of his sons. The ruling includes the case of an illegal sexual relationship. Fair enough, since in both cases it relates to consensual sex.

In Imrana’s case, however, the woman was allegedly raped. So the intercourse that did take place was neither legal nor consensual. It cannot therefore establish a relationship. The spirit of the ruling of Imam Abu Haneefa could certainly not have been punishing an innocent woman traumatised by rape.

For if we take this line of reasoning, then rape will have to be acknowledged as a way of establishing a marital relationship and all raped women would become the wives of the rapists without the necessity of nikah. That is obviously not logical. So how can the fatwa, that rape by the father-in-law establishes the mother-son relationship between the raped woman and her husband, be called logical?

In this context we should consider a ruling of Imam Shafa’ai, which is based on the ayah of Sura Al Furqaan, where Allah mentions His blessings on mankind. Sura Al Furqaan: 54: “And it is He Who created man from water and has appointed for him kindred (relatives) by blood and kindred by marriage. And your Lord is Ever All-Powerful to do what He wills.”

Imam Shafa’ai argues that an act that is haram and impure can’t either establish or nullify something that is halal and pure. Relationships are a blessing from Allah as mentioned in the above ayah. So they can neither be established nor nullified by an impure and reprehensible act.

Hence if a man rapes a woman, she does not become his wife. Imrana, who was raped by her father-in-law, does not become the mother of his son (her husband). Their marriage remains valid and she can live with her husband. Of course, the rapist should be punished.

The mufti should have based his ruling on the opinion of Imam Shafa’ai. That way the rights of the woman would have been protected and the fairness of the Islamic Shari’ah would have been clear. Instead he took the Hanafi opinion in isolation without paying heed to the spirit of Imam Abu Haneefa’s ruling and made Shari’ah the laughing stock of the Indian media.

Once again we are being subjected to strident calls for the abolition of the Muslim personal law and the enforcement of a uniform civil code. This reluctance to consider the opinions of other Imams, whom we claim to follow, may actually result in having to accept the ruling of the secular Indian judiciary on religious matters.

For the record, there is personal law for all communities in India and a uniform civil code is resented by all. The Hindu Personal Law, for example, allows the Hindu joint family (Muslim joint families are not recognised though the joint family institution is an Indian tradition, not a Hindu one) to file a common tax return. That allows them to pay lower taxes. A uniform civil code will deprive them of this, among other benefits.

What is the solution to this and such future incidents? In my opinion all Sunni ulema (including those in India) agree that it is acceptable to follow the fiqh of any of the four major Imams; Abu Haneefa, Shafa’ai, Maalik and Ahmad ibn Hanbal.

The rulings of all these a’imma (plural of Imam) are based on authentic ahadith of the Prophet (peace be upon him) and on the ayahs of the Quran. The differences in practice are acceptable. There are no differences in aqeeda or creed. Here I am reminded of Imam Maalik who was the most eminent scholar and jurist of his time. When his Muwatta was published, a man suggested that he (Maalik) should use his influence to make his fiqh the dominant practice in the Muslim world and declare any differences with his rulings invalid and incorrect. Imam Maalik gave an answer that endures over centuries and reminds us of the broadmindedness of the true ulema. “If Allah wants to keep alive every sunnah of His Prophet (PBUH) who am I to change that and declare rulings based on his sunnah which are different from mine as invalid or incorrect?”

It is in this spirit that I suggest that the All India Muslim Personal Law Board (AIMPLB) create a committee of ulema of all four schools of thought (madhahib) which should examine the rulings of all the four Imams, on all matters relating to civil law and codify the ones most relevant to present times as the Muslim Personal Law Code. This committee can then be made into a standing committee which will examine and give rulings on all questions that arise vis-à-vis this Personal Law Code.

This will save us from the confusion of conflicting rulings. This step will also discourage differences and divisions between the followers of the four madhahib, which are growing among the ignorant in India. This is regrettable and is reinforced by the ulema who support exclusively, the madhab they follow. I am deliberately not mentioning the Shia. The AIMPLB can have a Shia Council which can deliberate and pronounce rulings as necessary.

It is time to practice what we say: we respect all four imams and their rulings. Islam has tremendous flexibility with respect to interpretation of the law. Where this serves the interest of the oppressed and the image of Muslims and Islam, I believe it is essential to take proactive and positive action.

Yawar Baig is an Islamic scholar based in Bangalore, India