MUFTI MOHAMMAD SHUAIBULLAH KHAN
TRANSLATED BY MUFTI MOHAMMAD ANWAR KHAN
Sometimes, women have to face far extremely complicated problems and cruel conducts at the hands of their husbands and from the families into which they have married. Often, these problems appear to be unbearable for women, and appear to them as almost impossible to deal with e.g., the unjust treatment of the husband who always victimizes her with his brutality, and does not give her the allowances to meet the household expenses, which can be the cause of a serious matrimonial discord in the family. At other times, it happens that the husband is sexually impotent, and the wife is helpless to take any steps to get a cure if it is a medical problem, as it is bound to trample on the egos of all concerned if such sensitive matter is brought out into the open, leaving the door ajar for the disintegration of a family. In other cases, the husband is insane, and the wife fears some bodily harm or physical damage to her person from his hands. There are a host of other problems, which a woman may have to confront in the course of her married life, and learn to bear them, or get over the handicaps faced by her in order to sustain the marriage and stop it from breaking up.
Apparently, on one hand, there is a human sympathy to rescue women from these complications and entanglements, and to look for solutions for them, there is a serious requirement according to the Islamic Shariah that her legitimate needs should be addressed on an urgent basis in order to save the marriage from a certain collapse, on the other. But, regrettably, a grave misunderstanding exists among the Muslim masses that the Islamic Shariah does not have the answers to address all the modern issues faced by the Muslim women, which are troubling the newly married women in a family. It is generally believed that the Muslim Personal Law does not have what it takes to find solutions for these problems, and the only solution lies only in seeking a recourse in the government courts.
The basic reason for this misunderstanding is that, generally, the Fiqh of Imam Abu Hanifah is observed and practiced in our country, and in most of the cases related to women an Islamic Qazi (judge) is needed without whose interference there can be no solutions for the problems faced by the women in a matrimonial discord. Since there is no Muslim government in our country, India, and the Muslim community lacks a ruling authority, a Qazi appointed here may not be the Qazi of Islam. Consequently, his verdicts, if he has a narrow-minded understanding on the problems he is faced with, would also be unsound and unreliable. The general populace, therefore, deduces from this fact that the Islamic Shariah and the Muslim Personal Law are unable to find solutions for the problems faced by the Muslim women. It is because of the reason that in our country there is no learned Muslim Qazi nominated by the Government of India whose judgments can be upheld and made binding on the litigants by any Indian Court of Law. The reason is that there is no provision vested in the Constitution of India to grant such an authority to a judge belonging to the Muslim community.
With this growing misunderstanding, some more serious problems have cropped up. Some women have turned apostate and converted themselves to other religions on account of some illiterate people’s advice, thinking that such an act would break the tie of marriage and they would get rid of their cruel husbands. Whereas the fact is that conversion or apostasy cannot nullify the marriage. They will still remain as husband and wife. Our community is facing this tragic situation because generally people are unaware of the solutions presented to them by the Shariah to address all their problems. Hence, they fall prey to numerous misunderstandings and conjectures because of the want of a Qazi who can address their problems, and interpret the situation, in the broadest possible way - keeping within the bounds of the Islamic Shariah. As a result, it is wrongly understood that the Islamic Shariah has no solution for these problems and social matters. But, this is a dreadful misunderstanding, as we have affirmed it in the above lines. The Islamic Shariah has given reasonable solutions for all the problems faced by the women. It presents adequate solutions to address them on a sympathetic level taking their feelings and apprehensions into account that she has about getting a proper justice from the Islamic Courts of Law.
No doubt, there are a host of problems, which are impossible to deal with according to the Hanafi Fiqh, unless a Muslim Qazi mediates, and looks into the issue at hand from all possible angles. But we can never infer from this that these problems cannot be solved in the light of the Islamic Shariah, because there is a difference of opinion whether or not it is possible in India for the appointment of an Islamic Qazi to look into the problems faced by the Muslim society. In the existing set-up in India, a ‘Qazi’ can be appointed according to the Islamic scholars of Bihar. If the Muslim intellectuals have complete faith in his sound judgment and knowledge of the Islamic Shariah to address those problems, the judgments and verdicts of such a Qazi shall be effective and valid as of the judges of Islamic courts. These scholars have based their theory on the account of some passages found in the Hanafi Fiqh. For example, there is a regulation declared in the Fiqh of Ahnaf that a Qazi could be appointed by the approval of all Muslims. These people emphasize that if Muslims together appoint someone as a Qazi to arbitrate between them with their consent, then he will have the power and the authority of a judge as it is done in an Islamic State. On account of this thesis, several courts for Qazis (Darul-Qaza) have been established under which the rights of women are given full protection and defended against cruelty and misbehavior by their other relatives, by bringing appropriate solutions for all their problems and difficulties. The majority of the Muslim scholars in India in this regard hold the opinion that since India lacks an Islamic government, the Muslims do not have an authoritative power. Therefore, the Qazi appointed by the Muslim community will not have the power of an Islamic judge. Hence, his verdicts would not be binding on the contending parties. Now, there may arise a question in the minds of people of an Islamic society: what about the solutions for their problems, especially those facing women, while the fact remains that there is no Islamic Qazi appointed by the Government of India vested with full judicial powers, which can be made binding on the both the accusers and the petitioners, and they cannot be solved without him?
The answer to this question is that if the solution for problems faced by women appear to be impossible according to the Hanafi Fiqh, then we can always turn to other schools of thoughts in such difficult and complicated situations. The Hanafi Fiqh itself gives allowance for the same opinion that we could benefit from other Schools of Thought as well to find a solution to a problem. Since the different Schools of Thoughts of the eminent Muslim theologians, and Jurists of the Islamic Ummah are based on the teachings of the Shariah, the Muslims can also benefit from the rulings of another School of Thought. That also amounts to following the Shariah itself, as these rulings have been deduced by the Islamic Theologians of the other Schools of Thought from the teachings of the Holy Qur’an and the Sunnah of the Prophet Muhammad (saws).
Keeping this point in view, the Islamic Scholars of the Hanafi School of Thought took an advantage of this opportunity that was allowed to them by the Hanafi Fiqh by following Imam Malik in solving such problems. Maulana Ashraf Ali Thanwi (ra) has declared the Shar’ee Panchayat as a substitute to an Islamic Qazi. Therefore, we may solve all our problems, which need the intervention of a Qazi and seek the judgment under the protection of a Shar’ee Panchayat. All the positive and negative aspects of a Shar’ee Panchayat, its limitations and conditions, pros and cons, have been clearly explained in Maulana Thanwi’s book titled “Al-Heelatun Najizah”.
In brief, one must turn to the Islamic courts or Shar’ee Panchayat for the solution of one’s problems. So, it is an unfounded and inappropriate objection to complain that there is no solution for all the problems faced by the women in the Muslim Personal Law Board.
From these details, it is clear that the Muslim Personal Law has a good solution for all kinds of problems concerning women.
Now, we believe it is significant to make a mention of some of the important problems relating to the Laws concerning Divorce in the Islamic Shariah.
One of the solutions for the problems and difficulties of a woman in the Islamic Shariah is that she should be given the right to divorce a man, in the same manner as he can do it, on her own. In the terminology of Fiqh it is called “Tafweez-e-Talaqe” (consignment of divorce), which is mentioned in the Hanafi Fiqh itself.
The detail for this is that if the woman fears cruelty on part of her husband, or she fears that there is a possibility that he may create trouble for her in a manner that could not be foreseen by her at that time, then she can take it in writing from the husband that if he behaved cruelly with her or is troubling her or threatening her guardian, or representative, she would be entitled to initiate a divorce that will automatically come into effect, if such matters come to pass. Later, if she is faced by any problem or trouble, she or her guardian will have the right to get the divorce on their own, so that she might save herself from his misconduct and cruelty. If the husband was forced to give the right of divorce at the exact time of Nikah or after it, the woman would be able to initiate a divorce on her own without taking in the refuge of a Qazi or an Islamic court to protect her rights.
Since a woman lacks the foresight of the unforeseeable consequences that may result in the long run and the social implications that may result because of her action on the entire Muslim community in initiating a divorce on her own, the guardian of the woman should not allow this right for women without a limit. Maulana Thanwi says that some reasonable limit or condition should be added to this clause in the marriage contract. For example, two persons will stand witness that the woman has been conducted with cruelty. If they verify it, the woman would be permitted to make divorce effective on her own, otherwise she will be denied that opportunity in the Islamic Shariah, if this clause is not included and made binding in the contract, which is done and agreed upon by both the parties. (See Al-Heelatun Najizah P: 34)
Either way, the sacred Islamic Shariah has allowed “Tafweez-e-Talaqe” (consignment of divorce) on such occasions. The Muslim Jurists have devoted a special chapter under the title of “Tafweez-e-Talaqe”, in which the rules and regulations regarding it are mentioned. We don’t need here to go deep into its detail. For more detailed information, one must look up the authentic Fiqh books and most importantly “Al-Heelatun-Najizah” by Maulana Thanwi.
A Missing Husband
A woman passes through a critical phase in her life when her husband has gone missing without a trace. His people are unable to locate his whereabouts or the reasons for his absence from his house. Here, the Muslim theologians differ on the matter of a woman who loses her husband in this manner. Imam Abu Hanifah, Imam Shafi‘ee, and some other Islamic jurists hold the view that a missing husband shall be supposed to be living until the time his contemporaries exist. His wife, therefore, shall remain as the wife of the missing husband. She would not be entitled to marry with some other person in his absence. When all his contemporaries no longer exist, the Islamic government will make a proclamation of his death. Later, his wife is permitted to marry anybody she likes after passing the Iddah of his death.
However, Imam Malik has chosen a more moderate way, following the example set by Umar, Ali, and Usman (ra). He remarks that the way out is that a woman whose husband has gone missing can marry some other person after waiting for him for four years and passing the Iddah of his death. But, the period of these four years will commence from the time of appealing to the court of a Qazi.
Obviously, the first opinion is very difficult for women in our current age, though it is highly supported with proofs, as you will find it in its place. While the other way is very simple and easy for women, particularly, in India there is no alternative except it. Therefore, the Hanafi scholars have chosen this way as an Islamic verdict. But it must be remembered that a Qazi is needed to break the marriage bond in this case. Where a Qazi is not found, a group of Muslims of a high moral character (Shar‘ee Panchayat) will deal with this problem and take the responsibility of nullifying the marriage, which has been described in detail in Maulana Thanwi’s “Al-Heelatun-Najizah”. The scholars should, therefore, read this book carefully before dealing with such sensitive problems.
There is an important thing about a missing husband, which must be understood: that is, when the Hanafi jurists and others had adopted “that unless the contemporaries of the missing person pass away, his wife cannot marry another person”, this rule was applicable during the period of time when such cases rarely happened. If they happened, they were for some reasonable causes like the husband was put into jail or he was stranded during a voyage on some foreign land, and for the inconvenience of postal services, which are available today, he could not give his family the location of his exact whereabouts. But, generally, the incidents of missing husbands, nowadays, take place on account of the misconduct of the husbands who desert their wives and move to somewhere else and, consciously, hide themselves and get married with another woman.
In previous times, such incidents took place because of some unforeseen calamities, so the Muslim theologians and scholars commanded such a woman to wait for her husband until his life can be expected. But the times have changed, and cases of misconduct on the part of the husbands have increased. It has been discovered that most of the supposedly missing husbands trick their wives in order to make them believe that they are lost. They do all that to get rid of their wives on this pretext. Now she will have no other recourse except seeking divorce from him in an Islamic court. The second theory that was found simpler and easier was that a woman should be permitted to marry only after waiting for four years following the opinion of the Maliki School of Thought.
Both the concepts are derived from the Islamic Shariah and are based on reliable proofs. From this, it became obvious that there is a better solution in Shariah for such women.
How to Get Free from a Careless Husband?
Some women suffer from hardships when their husbands do not take care of them and their needs by providing them with maintenance and necessary expenses for living nor do they fulfill their respective rights and duties towards their wives, which they are entitled to in the Islamic Shariah, because of which they undergo untold miseries and face several problems. Such a man is called “Muta ‘annit” in the terminology of Islamic Fiqh.
Under such circumstances, a woman, on one hand, is disturbed and upset on account of her allowances and daily expenses that are being denied to her from her husband, she faces the problem of self-protection, on the other, if she complains to others about her suffering and risks physical abuse from her husband. In this case, the Hanafi scholars are of the opinion that the woman shall not be separated from her husband. As a last resort, she may seek a “Khula”, which is bound by her husband’s will, and if he is unwilling, she must remain patient until it is granted to her.
Imam Shafi‘ee, on the other hand, is of the opinion that it is a proper thing to allow a separation from such a wayward husband and break the bond of marriage provided the husband is not capable of providing her with an allowance owing to his poverty. If he affords, the woman can go to the Qazi to seek his help in obtaining her living expenses from an Islamic court; but she is not allowed to demand separation as Allama Shami has made it clear. Since, it is an obvious fact that this is not applicable in India because of the lack of a Qazi, the Islamic scholars in our country have adopted what Imam Malik has said in this regard, that is, the woman has the right to be separated with certain conditions which have been mentioned in details in Al-Fiqh-alal-Mazahibil-Arba‘ah. Our scholars have accepted the opinion of Imam Malik with the addition of two conditions: One is that the woman cannot afford expenses on her own to maintain herself. Secondly, the woman has a strong fear of falling into sin. Though, these two conditions are not included as part of Imam Malik‘s opinion, these two clauses have been added; because we need acute compulsion in adopting other’s thoughts and theories in order that the compulsion may be proven as Thanwi has described in the footnote of his book “Al-Heelatun-Najizah”.
In brief, if these two conditions are met, the woman would be entitled to file her case to the Qazi or the Shar‘ee Panchayat in order to apply for being separated from her husband. Thus, the Qazi or the Shar‘ee Panchayat shall take necessary steps with regards to this case and the divorce will take place in their presence, and get the marriage nullified, so that the woman may go forward with her life.
How to Get Rid of an Insane Husband?
One of the most serious problems related to women is that her husband is mad for which the wife is greatly fearful and terrified. She fears that he might inflict on her numerous kinds of physical harm and mental torture, and make her life quite miserable for her, because of which she finds it not only difficult to carry on as his wife, but also finds it impossible to live with her husband any longer. If such a woman demands separation from her insane husband, would she be justified?
In this regard, Imam Abu Hanifah and his pupil Imam Abu Yusuf say that such a woman has no right to demand separation whereas the other renowned pupil of Imam Abu Hanifah, Imam Muhammad Ibn Hasan allows such a woman the right of separation provided she fears harm and the pain that would be inflicted on her by her husband. Imam Shafi‘ee, Imam Malik, and Imam Ahmed Ibn Hanbal, too, are of the same opinion. Even some Hanafi scholars have given judgment according to Imam Muhammad; but this opinion needs to be discussed in some detail. Since there is some ambiguity in this regard, Maulana Thanwi has noted that in such a case, a Qazi hearing the petition should proceed with caution. He says, “It is better that an insane husband should be given a chance for getting himself treated for his malady for one year. If he recovers within this period, then it is all right for the marriage to continue; otherwise, the Qazi or the Panchayat after deliberating over the case of the woman will separate them as husband and wife and nullify the marriage bond between them with the condition that the rules governing this issue in the Books of Fiqh are met.”
Note: These examples have been presented here only for the purpose of elaborating on the point that the Muslim Personal Law has the solutions for women’s problems. These solutions exist either in the rulings of the Hanafi School or can be borrowed from the rulings of the Maliki School of Thought. All that is presented here is meant only to shed light on this matter in a brief way. We cannot give here the complete details on this subject with its clauses and sub-clauses for this is beyond the scope of the limitations of this article.
Therefore, on such occasions, one must turn to Muslim theologians and Islamic jurists and act according to their issued verdicts. Everybody must not hold a Panchayat in order to solve the problems as they crop up in the Muslim community. It would cause division and disintegration amongst the Muslim masses. Being unaware of these problems and serious aspects and dimensions and the conditions required for them, which have been mentioned elaborately in Maulana Thanwi’s book “Al-Heelatun-Najizah”, people would not be able to solve them. Everybody should, therefore, try not to encroach, and interfere in this respect, which falls within the domain of the rulings of the Islamic Jurists who are well versed in these laws.
Professor Basheer Hussain and His Misunderstanding
Finally, we deem it necessary to make clear that Maulana Thanwi had issued this verdict (Fatwa) and similar juristic judgments following the thoughts of Imam Malik, which were supported by the majority of Muslim scholars. Based on the details, which we have given above and explained that a verdict derived from the Maliki School of Thought, also, bears the weight of being an Islamic declaration, no understanding person will ever dare to deduce that Maulana Thanwi, wrongly, interfered in the Shariah. Only an uneducated person who is not well versed in the Islamic books on this subject would consider that he and other Muslims have accepted and justified the “legislative” to interfere in the Shariah.
Oddly, Professor Basheer Hussain has deduced both the results in his article, “Uniform Civil Code” published in the Daily Salar, Bangalore, dated: 13, August, 1996 and later he committed the same mistake in his other article published in the same newspaper.
I have given a satisfactory answer to his misunderstandings and his erroneous remarks in an article titled “A Critical Analysis of the Objections on the Muslim Personal Law” in the same newspaper Salar, dated: 25-26-27, August, 1996.
In brief, Maulana Thanwi had adopted the thought of Imam Malik and left the Hanafi thought in certain cases in the light of Islamic teachings supported by the Qur’an and Hadith. It is an incorrect idea to declare such an act as interference into the Islamic Shariah, and to justify it is a clearly misleading notion based on ignorance and misunderstanding of the subject.
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