In the contemporary world rights of women in general and those of Muslim women, in particular, has become quite an important issue. Our Institute is strongly committed to gender equality and we have been doing whatever we can by way of research, writings, awareness workshops etc. to promote Muslim women’s rights within Islamic frame-work. I have tried to write, as it is my priority area, on practically every aspect of this subject.

Today I am writing again as recent fatwas and controversies about women’s rights in Islam have once again raised this controversial issue in media as well as in academic and Islamic circles. Also, in European countries hijab or face veil is being banned by some countries and has attracted adverse attention in media. Our stock reaction is western media is hostile to Islam (which is largely true) but never examine issues involved critically, much less take practical measures.

In terms of fiqh (jurisprudence) in general, and in the area of personal laws (ahwal al-shakhsiyah) in particular, has become stagnant and fatwas are issued on the basis of certain juristic texts evolved during early centuries of Islam. Whenever any question is asked pertaining to women’s rights, our Ulama take resort to these juristic texts and issue their ruling without taking real context and problem into account.

When some who stand for women’s rights differ they are accused of being western feminists or Muslims only in name. This is so painful and disturbing. When some Muslim women themselves try to acquire Qur’anic scholarship and study of sunnah, they too stand accused of being anti-Islam distorting Islamic laws. Unfortunately some people holding university degrees are also indulging in such accusations as they are disturbed by changes.

Once I was invited by the law faculty of Aligarh Muslim University to deliver an extension lecture on “Rights of Women in Islam” which was also being attended by many female students of law and other faculties. I spoke on the subject only with reference to Qur’an and sunnah to prove that both men and women enjoy equal rights in all the fields of active life.

To my shock and embarrassment of audience a lecturer in law stood up and said, ‘sir, you have forgotten to say that men should also get pregnant and produce children’ I told him politely please address this question to Allah, not to me. This is how many educated who teach in universities think. Even these educated men and women too are totally ignorant of how Islamic jurisprudence evolved over a couple of centuries and consider it as divine and immutable.

When one stresses importance of ijtihad in Islam the stock reply is there is no one qualified to do it and some argue the doors of ijtihad have been closed after sack of Baghdad in 1258. Now we have to conserve whatever has been inherited. Firstly, the question arises who closed the door of ijtihad? Is there any central authority in Islam to pronounce such a closure? This is simply not true.

There are very complex reasons for Ulama shunning their duty to do ijtihad. One has to go into these reasons. Another thing I would like to stress is that the Islamic process of jurisprudence has been one of the most dynamic one for few centuries and was based on a central Qur’anic value of justice. I can say there have been few attempts in human history to undertake such law making enterprise with justice being so central to it.

Ijtihad was the very spirit of the whole project. As long as Islam was confined to the Arab Peninsula, the questions faced by jurists were relatively simple. Also, all companions of the Prophet were around and there was hardly much difficulty in solving the problem. But once Islam began to spread speedily in non-Arab parts of the world with vastly different cultures, customs and traditions, complexity of problems increased.

Also, add to this the fact that companions of the Prophet were also not around after two generations and then even followers of these companions and followers of followers of these companions also gradually vanished leaving a great gap. It is then that great jurists with the spirit of ijtihad appear on the scene and try to tackle new problems which were arising. New tools like qiyas and ijma’ (analogical reasoning and consensus among Ulama’) were invented which clearly made it human enterprise.

Here we are more concerned with the question of women’s rights in this process of legislation. Since Islam was a great liberation movement for whole of humanity and especially weaker sections of society, women could not have remained unaffected. The widows, the divorcees, the slave girls and orphans were great sufferers among them. Widows were treated with contempt as in India. Also, there were no written laws in a tribal society. Everything either depended on customs and oral traditions or on arbitrary behavior of the powerful.

There are many instances in which some men had as many as eight or ten wives. The eldest son after father’s death could even take his step mothers (except his own mother) as his wives and have sex with them. Also, to have daughters was considered as a matter of shame. The Qur’an has described it as follows: “And when the birth of a daughter is announced to one of them his face becomes black and he is full of wrath. He hides himself from the people because of the evil of what is announced to him, Shall he keep it with disgrace or bury it (alive) in the dust?..(16:58-59)

How ashamed these pre-Islamic Arabs felt when daughter was borne and in most of the cases buried it alive. And see how Qur’an elevated their status to that of equality with men and empowered them with all the rights – individual dignity, right to marry man of her choice, right to stipulate conditions for marriage, right to divorce (kula’), right to inherit, right to her own earnings and right to property. In short her status was raised from chattel to full human being with all the rights.

It was not short of any revolution. Then the Prophet himself married a widow and fathered all the daughters and loved them more than one would love ones sons. He was especially attached to his youngest daughter Fatima and would even stand up when she entered his house. There is a chapter in Qur’an al-Nisa’ (The Women) but no chapter like al-Rijal (men).

There are several verses in the Qur’an which emphasize that men and women would be equally rewarded and no discrimination would be made. Thus we find in the Qur’an, “So their Lord accepted their prayer, (saying): I will not suffer the work of any worker among you to be lost whether male or female, the one of you being from the other.” (3:194). And also see verse 33:35 if there is any doubt in any ones mind about equality in matters of reward and punishment for both men and women.

Then important question is why this was not reflected in practice and in the process of legislation and schools of Shari’ah or different madhahib? This is the key question and we would like to throw light on this question. It is on understanding this question that lies the way to bring about necessary changes in the status of Muslim women today and to restore it to the one accorded her by the Qur’an.

Before we discuss this I would like to say that even the Islamic jurisprudence as it obtains today is not, and could not be, oblivious of justice as a value though in some cases justice did become secondary. Certain pronouncements of the Qur’an are so clear that the Shari’ah law could not ignore them. But then there is another problem that of social values, customs and traditions which further mar the spirit of justice.

One or two examples should suffice. Let us take, for example, the question of child marriage. Since marriage is a contract in Islam, a child could not enter into a contract and hence her marriage guardian (often father) entered into the contract on her behalf. But then as a child she cannot authorize her father to do so.

Hence the Hanafi school provided for her to accept or annul her marriage. This right is called khiyar al-bulugh i.e. option of puberty. However, in Muslim society child marriage remained but option of puberty was lost. Once father married off his daughter how can she refute it? It becomes the question of izzat (honor). Thus social customs become more important than Shari’ah provisions

Many more examples can be multiplied. In certain Muslim communities like Memons for example, women did not inherit and instead Hindu customary law applied to them until 1937 Shari’at Act came into existence. Even today ground situation is very different from what has been provided for in Shari’at law. Also, half-literate village imams and Panchayats enforce customary laws in the name of Islam and media passes them off as Islamic provisions.

Thus it would be seen that in most of the cases there are complex problems and interactions between Islamic provisions, social customs, tribal practices and patriarchal values. To legitimize these practices, Islamic Shari’ah is wrongly invoked and irony is that our Ulama keep silent knowing fully well it is not Islamic. Even if they oppose, it is so discrete that it has hardly any impact on the society. They fear public reaction.

In fact many scholars have repeatedly pointed out that one must distinguish between fiqh and shari’ah. Fiqh is nothing but an attempt to understand a problem, to know it and it has to be a continuous process as new situations and new problems keep on arising. Shari’ah is the final product whereas fiqh is a process, a tool and a means. We should also keep in mind that the great imams struggled to find solutions to various problems they encountered in their own times and geographical locations.

Imam Abu Hanifa, for example, lived in Iraq which was a confluence of Arab and non-Arab cultures. Kufa, where he lived, was basically a military camp and had a large number of mawalis (clients of various tribes) from various countries conquered by Muslims. They had their own customs, traditions and social values and used to approach the Imam with their problems.

Thus the conquered countries also caste their shadow over the process of fiqh. Here the question of face veil becomes important. Is face veil Qur’anic or part of Prophet’s (PBUH) sunnah? Of course there are differences of opinion. But Qur’an certainly does not specify face veil but only says do not display your zeenah (i.e. bodily charms and adornments) publicly

Face veil, in all probability came from non-Arab feudal culture of Persia and Sassanid empires. Recently in a conference in Viena of 100 imams and religious advisors from 40 countries concluded that Islam does not make it a requirement for women to wear face veils. After all, they concluded, face veil is nowhere mentioned in the Qur’an, nor is there a Qur’anic injunction to cover the face.

Even in hadith there is no unanimity of face veil having been clearly mandated. Some scholars say it is some maintain there is no such mandate. Some say only hair should be covered. But all agree that women cannot cover their faces while offering five times prayers or performing hajj. Thus both while offering prayers and performing hajj women cannot cover their faces. And hajj is performed along with thousands of men.

Mohammad Marmaduke Pickthall, a British convert to Islam translator of Qur’an in English observes in his lecture delivered in 1925, “The Relation of the Sexes”, that the veiling of face by women was “not originally an Islamic custom. It was prevalent in many cities of the East before the coming of Islam, but not in cities of Arabia. “Muslim leaders adopted the face veil for their women, he said, “when they entered the cities of Syria, Mesopotamia, Persia and Egypt. It was once a concession to the prevailing custom and was a protection for their women from misunderstanding by peoples accustomed to associate unveiled faces with loose character…it has nothing to do with the religion of Islam, and for practical reasons, it has never been adopted by great majority of Muslim women.”

However, slowly, as feudal culture became the norm face veil struck its roots and slowly Islamic theological resources were used to make it appear Qur’anic and part of sunnah. There is one interesting example. Mu’awiyah was appointed governor of Syria during 2nd Caliph Hazrat Umar’s time. Hazrat Umar was very strict in following simple way of life. When he was told that Muawiyah sits on a throne and others stand on both sides of throne with folded hands, Umar was furious and sent a letter to Muawiyah asking his explanation.

Muawiyah wrote to him if I do not do here no one will follow my orders as Syria has been governed by Roman emperors for centuries and they are used to this way of governance. Umar did not object thereafter. And then of course Caliphate was itself transformed into mulukiyyat i.e. kingdom and kingdom also accepted as Islamic. Thus it will be seen that foreign influences work on legal system and before we understand becomes our way of life and we accept them as legitimate.

Islamic jurisprudence could not remain uninfluenced by such influences and since the body of Shari’ah developed over a period of three centuries and Islamic jurists (fuqaha) worked on developing it in far off centers like Mecca-Madina, Iraq, Egypt and Cordova (Spain), how can we say that cultures in these great Islamic centres did not influence thinking of these great jurists.

It is said that during these centuries there were more than 100 different schools of law of which not more than 4 survived in Sunni Islam. It is because independent thinkers and jurists used their intellectual powers to comprehend different problems and find solution and, there being no church and priesthood in Islam freedom to think and comprehend problem for oneself was no problem. And if they could find some followers, their school of thought also persisted.

In fact no one shut doors of ijtihad at any point of time but once these four schools of jurisprudence found large number of followers and others did not survive, others were discouraged to develop more such schools. The Shi’ah Islam, on the other hand, retained the institution of ijtihad by independent mujtahids (those who do ijtihad) as 12th Imam went into seclusion and there was no one from the Family of the Prophet (PBUH) to guide the process of jurisprudence.

The Ismailis, on the other hand, perfected their own school under the guidance of 14th Imam Mu’iz in the form of book called Da’im al-Islam around 10th century and is followed ever since. There has been no further development in the Isma’ili school ever since. Besides that there are other minor schools like Zahiri School or Ibadi but followed by small number of people. Also, the Nizari Isma’ilis headed by Aga Khan today believed that one of their Imams Hasan ‘ala zikrihi al-Salam suspended application of Shari’ah law and there is no need to follow any formal Shari’ah law as such.

Now the need to trace this brief history of development of Shari’ah law is to show that the rigidity with which we follow it today is un-called for and, leaving apart ‘ibadat (matters of spiritual worship) we have to rethink in all other social, legal and criminal matters as far as Shari’ah law is concerned. Muslims have accepted many changes in these matters throughout Islamic world.

Indian Muslims themselves accepted many changes when the British Government suspended application of Islamic criminal law and introduced their own criminal code which was translated into Urdu by Maulavi Nazir Ahmed and was given title of Shamsul Ulama (Sun of the Islamic theologians) for his services. No one objected to it. But main problem arises when it comes to personal laws involving marriage, divorce, inheritance etc.

Why this resistance? Mainly because of question of women’s rights is concerned in these matters and our society in general and conservative Ulama who come from the same society, in particular, are not prepared to concede gender equality which is so clearly pronounced by the Qur’an and suppressed consequently by patriarchal social influences. This was realized by many Ulama who had open mind and tried to rectify situation.

During colonial period some Islamic thinkers under the influence of modernity tried to rethink and reformulate Shari’ah provisions. Muhammad Abduh of Egypt who rose to be grand Mufti of Egypt showed great courage in re-thinking. Here in India, thinkers like Sir Syed, Maulavi Mumtaz Ali Khan and Maulavi Chiragh Ali did great work of ijtihad which again shows doors of ijtihad were never closed by any one. What is needed is courage and bold thinking going directly to Qur’anic values and Prophet’s sunnah in conformity with the Qur’an rather than resorting to plethora of controversial ahadith.

Today, there has been complete transformation of concept of women’s rights, their empowerment and their social role. Gender is nothing but social construction, not natural in origin. However, Islamic theologians refuse to accept changing concepts of gender and its social construction and still think women should perform domestic role and should not go out and do what men have been doing.

What they talk of Shar’i hudud (limits) is nothing Qur’anic in it but the gender role evolved during medieval ages and sanctified as Shar’i requirement. During the Prophet’s time women played revolutionary role and liberated themselves from men’s slavery and became harbingers of Islamic revolution. They, however, lost out to feudal patriarchal values again when Islam spread to areas where Sassanid and Roman Byzantine empires were well entrenched and feudal values were firmly rooted.

Today, though oil in the Middle East has put wealth in the hands of Arab ruling classes but it will take a while for thorough social transformation to take place. The rest of Islamic world is still grappling with the fundamental questions of poverty and illiteracy from Algeria to Egypt to South and South East Asia (except Malaysia) to Indonesia and Philippines. Add to this the anti-Islamic propaganda of western media always attacking Islam and Muslims and US-Israel aggression which gives rise to political Islam reviving itself in reaction. And revival of traditional Shari’ah becomes an important agenda of political Islam. Still many Muslim Intellectuals are engaging themselves with women’s question.

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