by Moiz Tundawala
Judicial divorce for Muslim women in the Indian subcontinent
In 1931, Maulana Ashraf Ali Thanvi,, a renown Sufi scholar of the Indian subcontinent, issued a fatwa holding that apostasy did not annul a Muslim marriage, and that a woman experiencing hardships in marriage was entitled to seek judicial separation. But interestingly, evident from a 1913 fatwa, he was earlier of the opinion that the marriage was in fact annulled in case the wife apostasized. What made him change tack? Does this revision not take away from the credibility of his juristic opinions? Is he not guilty of transgressing shari’ah, predominantly thought of as an inflexible set of rules unresponsive to context? I argue below, invoking the pragmatic principle of maslahah (welfare), that Thanvi’s latter intervention should not surprise; the Islamic legal tradition is not unfamiliar to change of this sort.
To appreciate the significance of the 1931 fatwa, it is important that we be aware of the classical position on the liberty of Muslim women to divorce their husbands. Under Hanafi fiqh, which is adhered to by the majority of Muslims in India, Pakistan and Bangladesh, the most widely accepted view is that talaq is primarily a man’s unilateral prerogative; the husband’s impotence is the only ground available before a woman to seek a judicial divorce. This of course is apart from khula, a separation proceeding initiated by the wife, but for all practical purposes not possible without the consent of the husband. So, it was difficult for a woman to walk out of a bad marriage. One option which many were compelled to take recourse to was apostasy. To get rid of incompatible or cruel husbands, women could simply utter words of disbelief, or convert to other religions, which, as Thanvi’s first fatwa suggested, would automatically dissolve the marriage contract.
Now, around this time, taking advantage of the situation, Christian missionaries started wooing Muslim women; it was not uncommon for them to convert in order to escape their marital miseries. Feeling threatened, calls for reform to the Hanafi law on divorce were being made from as prominent an intellectual as Mohammed Iqbal. Thanvi’s 1931 fatwa sought to address precisely this problem. He relied on a lesser known Hanafi view to support his conclusion that apostasy per say does not dissolve the marriage. Further, to help women tide over hardships from an unsustainable relationship, he recommended the adoption of Maliki doctrine which recognizes various grounds for judicial divorce such as a husband’s cruelty, insanity, disappearance, impotence, and refusal to provide maintenance. To justify himself, Thanvwi resorted to the defending Islam argument, emphasizing that his fatwa was directed at those who believed the shari’ah did not provide relief to Muslim wives in distress. In my submission, implicit in this revision is the working of the juristic principle of maslahah.
Maslahah: A vehicle for legal change
Maslahah, or welfare, has been invoked to extend and adapt the primary source texts—the Qur’an and Hadiths (narrations of Prophet Mohammed)—to cater to public interest, so much so that it has come to be seen as one of the principle vehicles for legal change in Muslim societies. Very briefly, some jurists opined that the objective and purpose of Shari’ah is the believer’s maslahah. Al-Ghazali argued that the giver of Shari’ah intended to preserve the following five essential elements for the well being of humankind: their religion, life, intellect, offspring and property. So, by departing from his earlier position, Thanvi, even though he did not clearly say so, may have thought about the practically significant need of protecting the religion of Islam from the threat posed by Christian missionaries, and offering to Muslim women a fairer deal with respect to divorce so as to enable them to lead a more decent life.
The difficulty however, is that concretization of this principle brings with itself the 
possibility of deviating from the sources themselves. Take for example the second Sunni Caliph Umar’s suspension of the punishment for theft during the year of the famine against the Qur’anic injunction of amputating the hands of thieves. (Q 5:38). On the one hand we have a definitive verse which seems to admit no exception, and on the other we have two persons stealing meat to be able to live. What ought to have priority in this case? While the early proponents of maslahah employed a formal rationality to restrict its application only to analogically similar fact situations, later jurists went further ahead to adopt a substantive rationality and treat it as an epistemically certain and independent standard of assessment even if it meant violating the texts. This comes close to what Anwar Emon has called a recognition of the ontological authority of reason as a source for Shari’ah norms.
Reason or revelation
What about the texts then? Does the wide acceptance of maslaha not prove the supremacy of reason over revelation? I believe not quite. Even the most liberal proponent of maslahah, Najm al-Din al-Tufi who argued in its favour with or without nass (revelation) relied upon a hadith providing that no harm shall be inflicted or reciprocated in Islam. For him, the conflict was not between maslahah and a source-text, but between two source-texts. His writings though fell out of favour, only to be rediscovered and used by modern day reformers. Perhaps the majority of jurists did not deem it appropriate to veer away too much from the texts. Besides this hadith, Mohammed Hashim Kamali has listed many Qur’anic verses which have been relied upon in support of maslahah (Q 5:8, 10:75, 21:107 and 22:78)
So actually, the texts are never completely out of the picture. Again, improper or extravagant exercise of Maslahah was at least subjected to text based criticism if nothing else. For instance, based on unverified anecdotal evidence, Khaled Abou El Fadl has written about a Buyid ruler who once fell in love with a slave-girl and found himself increasingly preoccupied by her. He ordered that the girl be drowned so that he might be able to concentrate on more fruitful endeavours. Stretching maslahah to such a limit wherein an innocent Muslim was killed without fault was to the reporting jurist a clear case of insanity and disbelief.
If fiqh scholarship was at all influenced by theological debates over rational proofs for religious truths between the Mu’tazila (rationalists) and the Ash’aria (traditionists), we would be left with no doubt about the supremacy of sources. As revelation prevailed over reason in this battle, with the doctrine of the createdness of Qur’an officially abandoned 
and Ibn Hanbal’s minha (inquisition) stopped, adherence to source texts became increasingly important. I am not making a case for orthodoxy here; there are multiple orthodoxies if at all. My point is that the nature of shari’ah is such that any exercise in fiqh has to show deference to texts. The methods and principles to be applied in understanding are questions of interpretation; we can proceed with them only if there is consensus on what needs interpreting. It must not be forgotten how so ever a radical interpretation one may espouse, that maslahah is about affirming the objectives of shari’ah, and not something derived from independent human reasoning alone.
Contextual pragmatic change
In fact, I reckon that the facticity of source texts in the Islamic legal system plays a crucial role in helping prevent the rule of arbitrary whim. But this need not hinder the possibility of fashioning just solutions for every case depending on its peculiarities. Justice Felix Frankfurter had once extolled the formality and predictability of the American legal system, juxtaposing it with the idea of a ‘qadi [judge] sitting under a tree … . dispensing justice according to considerations of individual expediency’. [Terminiello v. City of Chicago, 337 U.S. 1 (1949).] He may well have been indulging an oriental stereotype, to which I may retort back by celebrating the virtues of a more personalized and socially rooted judicial system as compared to the mechanical rationality of Western legalism. However apart from this, as should be clear from the discussion above, it is not that the activity of determining a hukm or ruling for a given problem is a legally unbound process. The sources, along with the systematic principles and methods developed for their better understanding, keep the jurists grounded, notwithstanding the conventionality or ingenuity of their interpretations. Maslahah, as we saw, is one among various techniques, developed to facilitate the pragmatic adaptation of the Islamic legal tradition to changing circumstances of space and time.
In my understanding, one major factor enabling such growth has been the remarkable absence in the Islamic tradition of the singular authoritarian agent capable of stipulating Shari’ah norms and ensuring their observance. But today, this absence is being challenged by two kinds of authoritarianisms: one from the state, and the other from homogenizing interpretations of Islam. Both claim for themselves absolute truth. Gone are the days of epistemic scepticism and non-interfering attitudes. Both may find it hard to coexist; only time will tell who ends up being the victor. But our past speaks about reconciliations: the most rigid perspectives have had to mellow down to accommodate opponents in order to survive. And herein lies our best hope. Only that the actual competition today is between these two forms of authoritarian interpretations on one hand, and the rest on the other.
(Moiz is a doctoral candidate at the London School of Economics and Political Science)
References:
1. A. Emon. (2010). Islamic Natural Law Theories. Oxford, New York: Oxford University Press.
2. F. Opwes. (2007). Islamic Law and Legal Change: The Concept of Maslahah in Classical and Contemporary Islamic Legal Theory. In: Amanat, A. and F. Griffel Shari’a: Islamic Law in Contemporary Context. Stanford: Stanford University Press. 62-82.
3. K.A. Fadl. (2001). Speaking in God’s Name: Islam, Authority and Women. Oxford: Oneworld Publishers.
4. M.H. Kamali. (2003). Principles of Islamic Jurisprudence. 3rd ed. Cambridge: Islamic Texts Society.
5. M.K. Masud. “Apostasy and judicial separation in British India.” Islamic legal interpretation: muftis and their fatwás (1996): 193-203.
6. S. Zubaida. (2003). Law and Power in the Islamic World. London: I.B. Tauris.
Image courtesy: here, here, and here. The images do not necessarily reflect the points raised or arguments made in this blog post.
