Islamic Ideology
Deoband’s Anti-Women Fatwas: A Partial Explanation- Yoginder Sikand, NewAgeIslam.com
Yoginder Sikand works with the Centre for the Study of Social Exclusion and Inclusive Policy at the National Law School, Bangalore.
Deoband’s Anti-Women Fatwas: A Partial Explanation- Yoginder Sikand, NewAgeIslam.com
Yoginder Sikand works with the Centre for the Study of Social Exclusion and Inclusive Policy at the National Law School, Bangalore.
25 Nov 2010, NewAgeIslam.Com
http://www.newageislam.com/NewAgeIslamIslamicIdeology_1.aspx?ArticleID=3728
Yoginder Sikand, NewAgeIslam.com
The fatwas that the Dar ul-Ulum, Deoband, India’s largest madrasa, dishes out with distressing regularity may or may not be taken seriously by many Muslims, but there is no doubt that they certainly are by the dominant (largely non-Muslim) media. That these fatwas have a curious have a knack of hogging newspaper headlines might speak more about the media’s own in-built biases, being ever on the prowl for sticks to beat Muslims with, than about the Deoband madrasa itself. But, that aside, the fact remains that not an inconsiderable number of the madrasa’s fatwas, mainly to do with women and marriage, have, in recent years, been greeted with fierce denunciation by increasing numbers of Muslims themselves, and, that too on Islamic grounds. Such Muslim critics, whose numbers are not inconsiderable, contest these fatwas for their alleged faulty arguments and even more faulty conclusions, insisting, based on their own understanding of Islam, that these juristic opinions have no merit at all.
Although ‘traditionalist’ and ‘orthodox’ in terms of theological interpretation (kalam) and jurisprudence (fiqh), the men who man the Deoband madrasa are not, contrary to what some might believe, wholly anti-modern. They willingly embrace, for instance, modern technology, which they press into the service of propagating their particular version of Islam. Thus, the madrasa has an impressive, tri-lingual website (www.darululoom-deoband.com), which hosts hundreds of articles and thousands of fatwas, dozens of photographs, and a couple of books. Six booklets can be downloaded from the English section of the site, all written by senior Deobandi scholars. One of these, by Ashraf Ali Thanvi (1863-1943), among the pioneers of the Deobandi tradition, is titled Nikah [Marriage] in Islam. [i] Thanvi continues to be widely revered in Deobandi circles, a good indication of which is the fact that three of the six English booklets available on the madrasa’s website are translations of essays penned by him.
Since Thanvi’s booklet that purports to discuss marriage rules in Islam is hosted on the madrasa’s official website, one may take the booklet to represent the authoritative Deobandi interpretation of Islamic rules and practices related to marriage. Since the Deobandis assume, and fervently believe, that their interpretation of Islam is the sole authentic one, they do not feel compelled to qualify the title of Thanvi’s booklet as being a Deobandi interpretation of Islamic marriage rules. In this way, they conflate the particular Deobandi version of Islam with Islam itself.
An examination of Thanvi’s booklet is instructive in providing an insight of how the Deobandis imagine the institution of marriage and some of the many rules related to it that they consider as normative and binding. It can also help us better understand, and, at least partially, explain, the flurry of anti-women fatwas that routinely issue forth from the portals of the Dar ul-Ulum.
Contents of the Booklet
In the booklet, Thanvi discusses various rules and conditions that he believes must govern marriage among Muslims, and classifies them into the following sections:
1. The Conduct of the Marriage
2. Persons with Whom Marriage is Forbidden
3. The Wali or Legal Guardian
4. The Question of Compatibility or Kufu’
5. Mahr or Dower
6. Marriages of the Infidels (Kuffar)
7. Equality Among Wives in a Polygamous Marriage
8. The Virtues of Marriage
The rules that Thanvi sets out are presented in the form of short points, each limited to a paragraph or two. Since Thanvi’s intention is perhaps to provide only a summary of these various rules, he omits mentioning the sources of these rules, whether they be Quranic verses, Hadith reports or the writings of past Muslim jurisprudents or fuqaha. This greatly limits the value of the booklet while also leaving it open to the charge that many of its prescriptions might possibly be based on Thanvi’s own personal opinions, medieval fiqh or juridical rules, weak or fabricated ahadith or statements reportedly about or by the Prophet Muhammad, and faulty, literalist and non-contextual understandings of the Quran and ‘authentic’ ahadith, and so on.
The overall structure and system of Muslim marriage that Thanvi outlines corresponds to that prescribed by the medieval fuqaha or Muslim jurists of the Hanafi tradition. This is hardly surprising, given the fact that Thanvi, like other Deobandis, was an ardent defender and proponent of the Hanafi school of fiqh, insisting that Muslims of this school must strictly abide by taqlid, or what is sometimes translated as ‘blind following’, of the rules devised by the medieval Hanafi jurists. Islamic scholars who are critical of the Deobandis for their insistence on taqlid point out that this doctrine is sometimes deployed to prefer the opinion of a medieval jurist over the explicit commandment of the Quran or what is considered an ‘authentic’ saying of the Prophet. This, they argue, is Islamically unacceptable. Moreover, they contend, the doctrine of taqlid acts as a powerful deterrent to ijtihad, individual juristic reasoning, a practice sanctioned by the Prophet but which defenders of taqlid are, in practice, if not in theory, hostile to, thus reinforcing the stagnation of Muslim jurisprudence and its inability to change in response to new contexts and challenges.
Thanvi’s description of the rules and norms that he argues must govern Muslim marriage clearly indicates the latter, as he conceives it, to be a patriarchal institution based on a series of hierarchies: men above women; husbands over wives; Muslims of real or putative Arab origin over Muslims of non-Arab or Ajami origin; and ‘upper’ caste Muslims over ‘lower’ caste Muslims.
Marriage and Male Dominance
As Thanvi describes it, a marriage can be envisaged as an exchange between two men, the father or other male guardian of the bride, on the one hand, and the groom, on the other, the former being the giver of the woman and the latter the receiver. In this exchange, the bride need not play any active role at all, and can remain entirely silenced and invisibilised. Thus, he says:
“A marriage can be executed by just two words, e.g. a person says the following words in the presence of witnesses: "I give my daughter to you in marriage." The person who is addressed replies: "I accept her in marriage." In so doing, the marriage is valid and both of them are lawful husband and wife.”
For a marriage to be valid, Thanvi writes, it must be witnessed to by at least two male witnesses, or one male and two females. This equating one male witness with two female witnesses probably follows from his transposing the commandment contained in a Quranic verse that pertains to loans (2: 282) to the completely different context of marriage, something which Islamic modernists might probably find deeply problematic. Thanvi goes on to add, but without providing any textual support for this opinion, that, ‘If there are no males present, but only females, the nikah will not be valid even if there are ten females present. Together with two females, one male has to be present.’
Role of the Wali or Guardian
Reflecting the structure of medieval societies, in the medieval Muslimfiqh schools, including the Hanafi, males are considered the preferred guardians of a child. As guardians, they play a major role in deciding their spouses. This provision has been strongly countered by Islamic modernists and Islamic feminists, who point out that the social context, including relations between the genders, has today undergone such a radical transformation that this rule may be considered archaic, patently unfair, and downright misogynist. But not so Thanvi and the Deobandis generally, who continue to insist that the Hanafi prescriptions on the issue are valid and binding even today. Thanvi goes so far as to insist that a very distant male relative, such as a grand-father’s uncle’s great grandson, has a greater right to be the guardian of a Muslim child, and, in that capacity, to play the role required of a guardian in the child’s marriage, than the child’s own mother. Thus, he elaborates:
‘The first wali of a boy or girl is their father. If the father is not present, the grand-father becomes their wali. If he is not present, then the great grand-father. If none of them are present, the blood-brother becomes their wali. If he is not present, then the step-brother, i.e. brothers from one father. Thereafter, the nephew, thereafter the nephew's son; and thereafter, the nephew's grand-son. If none of them are present, the blood uncle becomes their wali. If he is not present, then the step-uncle, i.e. the step-brother of their father. Thereafter, the son of the blood uncle and thereafter his grand-son. Thereafter, the son of the step-uncle and thereafter his grand-son. If none of them are present, the father's uncle becomes their wali; and thereafter his children. If the father's uncle, his children and grand-children are not present; then the grand-father's uncle becomes their wali. Thereafter, his children, grand-children, and great grand-children. If none of them are present, the mother will be their wali.’
The role of a guardian in a marriage differs, Thanvi lays down, depending on whether or not the would-be spouses are ‘mature’ (with ‘maturity’ or ‘adulthood’ in the case of girls being recognised once they begin to menstruate) and on whether or not they are of equal social status. A ‘mature’ girl, Thanvi says, has the choice to marry or not to marry. She can marry whomsoever she wishes, provided the man is of her social standing or kufu’. If she marries such a person on her own, the nikah will be valid irrespective of whether the wali is informed or not, and irrespective of whether the wali gives his consent or not. This process appears remarkably egalitarian. All that the couple have to do is to arrange for two witnesses, and then one of the would-be spouses must say: ‘I am making my nikah with you’, and the other must reply,‘I accept’. In so doing, the marriage is sealed.
The rules are different, so Thanvi argues, for a mature woman who does not marry a person who is of the same social standing as her, and, instead, marries a person who is of a lower standing than her family. If her wali is not happy about this marriage, the nikah will not be valid. In this regard, the wali has a central role in ensuring that social hierarchies are not undermined by a hypogamous marriage, one that entails a woman marrying a man who, although a fellow Muslim, is considered of lower social standing than her. This sort of marriage is looked down upon in the Hanafi fiqh tradition probably because it inverts what is considered to be the normal relationship between the spouses, with the man meant to be ‘superior’ in status to the woman. This rule against hypogamy, which Muslim critics would argue violates the egalitarian ethics of the Quran, is related to the notion ofkafa’at or kufu’, which will be discussed below, and which forms the basis of a caste-like system among the Muslims of South Asia.
On the basis of their reading of the Quran, progressive Islamic authors argue that marriage in Islam must be based on the willing consent of both partners. The two cannot be married against their will or be forced, no matter how very subtly, into a marriage they do not approve of. However, according to Thanvi, a wali can perform thenikah of a mature girl without asking her or without seeking her consent. The validity of such a nikah will be dependent on her permission and consent. If she grants her permission, he writes, thenikah will be valid. If she does not grant her permission or is not happy with the marriage, the nikah will not be valid. That might seem somewhat fair enough, but when Thanvi writes that if a wali informs a young virgin girl that he has already, and without having informed her, married her off to a man, and, on hearing this, she either remains silent, starts smiling, or begins to cry, this response of hers would be considered to be her permission and consent to the marriage, it completely undermines the freedom of a woman to refuse such a marriage. After all, commonsense would suggest that if she cries on hearing the news of her being married off without her having been informed of it, it is more likely that she would do so in sorrow than joy, indicating her opposition to the marriage rather than her acceptance of it. Similarly, if she remains silent, perhaps out of embarrassment, fear, or reluctance to displease her wali by protesting against his having married her off without even informing her, her silence need not necessarily be construed, as Thanvi seems to do, as heart-felt acceptance of the marriage. In this way, these rules appear to wholly undermine the freedom, agency and autonomy that the Quran grants women in choosing their spouses.
Thanvi, like other medieval Muslim (and other) jurists, even sanctions child-marriage, that is marriage of minors who have not attained the age of sexual maturity, although there is nothing in the Quran that validates this practice. Walis can, he writes, arrange for the marriage of ‘immature’ children under their guardianship even without their consent. This is the case even though such children definitely do not have the capacity to make an informed decision about their own marriages. ‘The wali has full rights over such a boy or girl. He can get them married to whoever he wishes and refuse whoever he wishes. Immature girls and immature boys cannot reject such a nikah at that time,’ Thanvi insists. If the wali of a boy or girl is his or her own father or grand-father, and he performs the nikah of an ‘immature’ girl or boy, the latter, Thanvi claims, does not have the right to reject or repudiate this nikah even after he or she becomes mature. In short, the child, now an adult, is thus trapped into a marriage he did not approve of in the first place. Here, too, caution must be taken, Thanvi writes, that such marriages do not disturb the existing pattern of social hierarchy and inequality. Thus, he says, if the wali of an ‘immature girl performs her marriage with a person of a lower social standing, thenikah will not be valid from the very outset’.
If a minor girl is married off by a wali who is other than the father or grand-father, the rules are somewhat different. If the child in question is a minor girl and she has knowledge of the nikah, and if she does not have sex with her husband until she attains maturity, she can, in some cases, have the marriage annulled. In such a case, Thanvi writes, ‘the moment she becomes mature, she must mention her discontent’, but this must be said in front of a Muslim judge, who, in turn, would annul the marriage. Yet, even this possibility is not as widely and easily available as one might hope, for Thanvi adds the impossibly impractical rider, ‘Once she becomes mature and allows even a moment to pass in which she does not mention her discontent, she will not have the choice of having her nikah annulled.’ Other convoluted rules apply in the case of a minor girl who is married off by a waliother than a father or paternal grandfather, and whose husband has sexual intercourse with her before she attains maturity. Thanvi does discuss this possibility, in the process unabashedly sanctioning marriage that involves sex with a minor girl.
Other Gendered Rules
Civilising Mission
From the various rules of marriage that he describes, it is clear that Thanvi, like his fellow Deobandis, considers women as clearly subordinate to men. This subordination is reinforced by what comes across as a very deep-rooted understanding that women are biologically and congenitally ‘deficient’ as compared to men and hence in supposed need of being both taught as well as controlled by the latter. It is as if men are charged with a civilising mission with regard to ‘their’ women. Thanvi advises Muslim men thus:
‘You should continue teaching your womenfolk and inculcate respect and good manners in them. Do not allow them to become impudent and disrespectful. The intellect of women is deficient; it is therefore incumbent to take special measures in reforming them.’
Mahr
The mahr or dower that the groom pays or promises to pay the bride, which is an essential condition of a Muslim marriage, is often described in modern Muslim writings as a form of economic security that can, or should, help a woman tie over her economic difficulties in case of divorce. However, Thanvi effectively rules out the possibility ofmahr playing this role because although he insists that in Islam there is no limit to the maximum amount of mahr and that the bride can stipulate as much as she wishes, he suggests that ‘it is not good to stipulate a very high figure.’ The ‘best wife’, he says, ‘is one whosemahr is very simple. That is, it is very easy for the man to fulfil hermahr. These days, there is the habit of specifying a very high mahr. People should abstain from this.’
As long as the mahr is not paid, Thanvi concedes, a woman cannot be stopped by her husband from travelling out of the marital home. However, once he gives her the amount he owes by way of mahr, her freedom of movement out of their home, Thanvi indicates, must be completely curtailed. Henceforth, he writes, she now depends entirely on her husband’s consent to travel out of the home, having to seek his permission even to visit her own parents. It is as if by accepting themahr from him, the woman completely forfeits her freedom of movement. Thus, Thanvi writes, after the husband gives his wife hermahr ‘it is not permissible for her to go anywhere without his consent.’ ‘As for the husband,’ he adds, ‘he can take her wherever he wishes. It is not permissible for her to refuse him.’
Divorce
Since Thanvi’s booklet purports to discuss various ‘Islamic’ rules of marriage, it does not refer in any detail to divorce. The only references to the dissolution of marriage that it makes are in connection with two hypothetical cases of incest. In both the cases that Thanvi describes, the female victim is penalised for the misdemeanour of the man by having her marriage automatically dissolved. Why a perfectly innocent woman must be punished in this way for the actions of another person is left entirely unexplained. Thanvi provides no Quranic support for these absurd rules, which also is completely antithetical to the Quranic dictum that a person cannot be punished for the misdeeds of someone else. Presumably, these rulings are recorded in the classical compendia of Hanafi fiqh that Thanvi feels bound to uphold as normative and binding. Let Thanvi speak for himself in describing these cases and the bizarre rulings that he lays down with regard to them:
“In the middle of the night, a man decided to awaken his wife. However, he mistakenly touched his daughter or his mother-in-law. Thinking them to be his wife, he touched them with the passions of youth. Now, this man will become haram(forbidden) on his wife forever. There is no way in which she can become permissible for him. It will be necessary for him to divorce his wife.”
“If a boy touches his step-mother with an evil intention, she will become haram on her husband. There is no way in which she can be halal (legitimate) for him. If the step-mother touches her step-son with an evil intention, the same rule will apply.”
‘Social Compatibility’ or Kufu’
The Quran speaks of the ontological equality of all human beings, as well as of the fraternity of Muslims. Exemplifying this socially egalitarian Quranic ethics, a number of early Muslims are known to have married out of their clans and socio-economic classes, engaging in both hypergamous as well as hypogamous marriages. Yet, over time, with the establishment and expansion of the Muslim Empire, the relatively egalitarian Muslim communities in Mecca and Medina gave way to a sternly hierarchical social system, governed by elites who jealously guarded their privileges. Rules governing marriage also underwent a corresponding change. No longer was it considered possible or permissible for Muslims of different classes and ethnicities to freely inter-marry, for that would have directly undermined the new social hierarchies that had come into being. Instead, complicated rules were evolved, in the name of kafa’at/kufu’ or social compatibility that laid down who a person of a particular social class and ethnic group could be permitted to marry. One could, it was argued, marry only someone of the same kufu’. Very detailed rules of kufu’ were evolved by medieval Muslim jurists and formed an integral part of the teachings and formulations of the fiqh schools, including the Hanafi.
According to the Hanafi school, as understood by the South Asian Deobandis, kufu’ is to be decided, among other factors, by birth in a particular social group based on lineage (nasab). In the South Asian case, this corresponds to caste. Violating the Quranic equality of all believers, Hanafi jurists claimed that Arabs were of a ‘superior’ lineage than non-Arabs or Ajamis, a view that the Deobandis continue to echo. On this basis, they forbade the marriage of an Arab woman or a woman from a family that claimed Arab descent (Syeds, or putative descendants of the Prophet Muhammad, and Shaikhs, in the Indian context) with a man from a family that was not of Arab origin, for that, in their eyes, would have meant a forbidden hypogamous relationship. But the restrictions on marriage did not stop there. By taking birth in a particular caste or occupational group to be a defining factor in kufu’, the Deobandi Hanafis argued for an almost complete ban on marriage between ‘high’ and ‘low’ caste/class Muslims, being particularly harsh on hypogamous marriages, that is marriages between ‘high’ caste/class women and ‘low’ caste/class men. In this way, the Hanafi conception of kufu’, based, among other factors, on lineage, was deployed to justify caste, caste endogamy and caste-based hierarchy among the Hanafi Muslims, whom form the vast majority of Muslims in South Asia.
As ardent Hanafis who insist on rigid taqlid of the prescriptions of Hanafi jurisprudents, even if these appear antithetical to the Quran, the Deobandis insist that Muslims must follow the conventional caste-based fiqh rules related to kufu’ in deciding marital partners. Thanvi devotes much of his booklet to a defence of the doctrine of caste-basedkufu’, which, without providing any evidence or textual backing whatsoever, he claims is precisely what is mandated by the shariah or the divine path. Thanvi thus warns his readers not to ‘perform thenikah of a girl with a man who is not equal to her in status or who is of no match to her.’ In other words, he suggests, the bride and the groom must be from the same kufu’. Echoing the standard Hanafi position in this regard, he insists that kufu’ is to be decided on the basis of equality five factors: lineage, length of time the family has been Muslim, piety, wealth, and profession or occupation. If the prospective bride and groom are not equal with regard to one or more of these factors, he indicates, it is inappropriate for them to marry. As will be easily appreciated, these rules, put together, form a powerful basis for reinforcing and sustaining existing socio-economic hierarchies and inequalities in any society.
Justifying Caste and Caste-Based Distinctions
Thanvi devotes much attention to the issue of ‘equality in lineage’ in shaping kufu’, in the process very clearly highlighting how the notion of the superiority of Muslims who claim Arab descent over other Muslims, as well as caste differences and hierarchies (all of which have no Quranic mandate) have come to be legitimised in the Hanafi fiqhtradition, which the Deobandis erroneously equate with the divineshariah.
In line with the standard Hanafi prescriptions, Thanvi considers Muslims who claim Arab origin, who, in the Indian context, are Syeds and Shaikhs, to be the kufu’ of each other while being superior to other Muslims. Thus, he argues, it is permissible for Syeds and Shaikhs (to which caste Thanvi, like most other pioneers of Deoband, belonged) to marry among themselves. As he puts it:
‘Equality in lineage is that the Shaykh [and] Sayyid [...] are [...] equal to each other. In other words, although the status of aSayyid is more than the others, if the daughter of a Sayyidmarries a Shaykh boy, it will not be said that she did not marry someone who is of her family relations. Instead, it will also be regarded as if she has married one of her relatives.’
Besides Syeds and Shaikhs, two other largely endogamous groups among the South Asian Muslims exist who also claim foreign, and, therefore, ‘superior’ social status: Mughals and Pathans. Thanvi insists that these groups are lower than Syeds and Shaikhs, presumably because they are not of Arab origin. Thus, he writes:
‘The Moghuls and Pathans are regarded as one nation and are not of the same class as that of the Sayyids and Shaykhs.’
Because the Mughals and Pathans are, in his view, ‘lower’ than the Syeds and Shaikhs, Thanvi contends that if the daughter of a Syed or Shaikh marries a Mughal or Pathan man, she would be marrying out of her kufu’, to a person of what he calls ‘a lower social standing’. Such a marriage is not regarded as permissible in Hanafi fiqh in most cases. It is certainly not considered to be preferable, Thanvi indicates.
Curiously, while discussing fiqh-based kufu’ rules linked to lineage, Thanvi talks only of the various ‘upper’ caste or so-called ashraf or ‘noble-born’ Indian Muslim groups, but does not care to even mention the many other Muslim caste-like groups, who are of indigenous, mainly ‘low’ caste, origin, and who, taken together, form the vast majority of the Indian Muslim population. This clearly indicates, as Masood Alam Falahi brilliantly illustrates in his incisive study on caste discrimination among Indian Muslims, that the leading lights of the Deobandi movement (as in the case of many other such South Asian Muslim movements), who were almost all from the ‘high’ castes, paid scant attention to the ‘low’ caste Muslim majority, even treating them with utter scorn.[ii]
Although, contrary to his stance on the ‘upper’ castes, Thanvi does not name the ‘low’ castes specifically while discussing kufu’ based on lineage, he does refer to them indirectly while discussing kufu’ rules with regard to ‘equality’ of occupation as a necessary basis for marriage. Repeating the traditional Hanafi prescriptions in this regard, he argues that only spouses who come from ‘equal’ occupational groups (which, in South Asia, correspond to caste groups) can marry each other. If they come from ‘unequal’ occupational groups, marriage is ruled out, he suggests. This hierarchical ranking of occupations is, needless to add, completely alien to the Quran, and reflects, besides the influence of medieval feudal Muslim culture, the impact of the Hindu or, more specifically, Brahminical, prejudices and conceptions. Yet, although this notion has no Quranic backing whatsoever, Thanvi unabashedly insists:
‘Equality in occupation is that, for example, weavers are not regarded as equal to tailors and are accorded a status that is lower than that of tailors. Similarly, barbers, washermen, etc. are not regarded as being equal to tailors, but are regarded as being lower than tailors.’
Since Thanvi, like other Deobandis, champions blind adherence to Hanafi fiqh, he also insists on the validity of the Hanafi regard for the length of time a person’s family has been Muslim in deciding kufu’with regard to a potential couple. Here, too, considerations of caste and ethnicity come into play. Thus, Thanvi writes that this rule of equality in being Muslim for a certain number of generations does not apply to Arab Muslims or those who claim Arab descent, that is to say Shaikhs, Syeds, Alavis (descendants of the Imam Ali through wives other than Fatima, daughter of the Prophet), and Ansaris (descendants of the Ansars or the Medinese ‘helpers’ of the Prophet). On the other hand, he specifies that this rule applies to all non-Arab Muslim groups, including Mughals and Pathans.
This rule effectively debars male converts to Islam from marrying women from established Muslim families, thus posing major hurdles for converts and also, presumably, for Islamic missionary work. Thanvi lays down, without citing any Quranic evidence whatsoever, that, ‘A man who accepts Islam and his father was a kafir cannot be on par or equal to a woman who is a Muslim and her father was also a Muslim.’ Since the man in question is thus considered ‘lower’ in status than the woman, marriage between the two is not, Thanvi appears to suggest, advisable. Thanvi gives another example. A Muslim man whose father is also a Muslim but whose grandfather was a non-Muslim ‘cannot be equal’, so he claims, to a woman whose family has been Muslim for three generations. In other words, so Thanvi argues, this man cannot marry such a woman.
Conclusion
All of us are creatures of our own times and of the social worlds that we inhabit. Thanvi was, of course, no exception to this rule. His understanding of Islam was indelibly shaped by the particular context in which he was born, reared and worked. This context played a major role in shaping his ideas of what he regarded as normative or ‘Islamic’ rules for Muslim marriage. It was a context characterised by stern patriarchy and women’s subordination, as well as the virtually unchallenged supremacy of the so-called ashraf or ‘noble-born’ Muslims of foreign descent over the vast majority of ‘low’ caste indigenous Muslims. The role of these contextual factors in shaping some of the rules that Thanvi developed in his booklet for Muslim marriages is very definite and obvious. But the basis of the detailed set of rules that Thanvi insisted must govern Muslim marriages remained the Hanafi fiqh tradition. As a result of his insistence on taqlid of the Hanafi tradition, as we have seen, Thanvi argued for a range of rules and restrictions that very obviously are at variance with Quranic teachings and, at the same time, also justify male supremacy, women’s degradation, child marriages, forced marriages, and caste-based hierarchies and distinctions. Although the context we must contend with today has vastly changed, in terms of both caste and gender relations, the Deobandis, wedded to the doctrine of venerating their ‘pious elders’, to use a term they employ, do not recognise the need to modify or change many of these laws that denigrate both women and ‘low’ castes, although, as progressive Islamic scholars insist, they violate Quranic teachings that preach the equality of all believers, transcending gender, caste, class and other such barriers. That the Dar ul-Ulum, Deoband, hosts this booklet by Thanvi on marriage, probably written a century ago, on its website can be taken as a sign of its dogged refusal to budge from its stated position of blind taqlid of the Hanafi school and of its own ‘pious elders’. That, in turn, explains, partially at least, the anti-women fatwas that this biggest of all Indian madrasas keeps churning out with such nauseating regularity.
Yoginder Sikand works with the Centre for the Study of Social Exclusion and Inclusive Policy at the National Law School, Bangalore.
[i] Ashraf Ali Thanvi, Nikah [Marriage] in Islam, http://www.darululoom-deoband.com/english/books/nikah.htm. Accessed on 24th November, 2010.
[ii] Masood Alam Falahi, Hindustan Mai Zat-Pat Aur Musalman (‘Caste Discrimination in India and Muslims’), Ideal Foundation, Mumbai, 2009.
URL: http://www.newageislam.com/NewAgeIslamIslamicIdeology_1.aspx?ArticleID=3728
http://www.newageislam.com/NewAgeIslamIslamicIdeology_1.aspx?ArticleID=3728
Yoginder Sikand, NewAgeIslam.com
The fatwas that the Dar ul-Ulum, Deoband, India’s largest madrasa, dishes out with distressing regularity may or may not be taken seriously by many Muslims, but there is no doubt that they certainly are by the dominant (largely non-Muslim) media. That these fatwas have a curious have a knack of hogging newspaper headlines might speak more about the media’s own in-built biases, being ever on the prowl for sticks to beat Muslims with, than about the Deoband madrasa itself. But, that aside, the fact remains that not an inconsiderable number of the madrasa’s fatwas, mainly to do with women and marriage, have, in recent years, been greeted with fierce denunciation by increasing numbers of Muslims themselves, and, that too on Islamic grounds. Such Muslim critics, whose numbers are not inconsiderable, contest these fatwas for their alleged faulty arguments and even more faulty conclusions, insisting, based on their own understanding of Islam, that these juristic opinions have no merit at all.
Although ‘traditionalist’ and ‘orthodox’ in terms of theological interpretation (kalam) and jurisprudence (fiqh), the men who man the Deoband madrasa are not, contrary to what some might believe, wholly anti-modern. They willingly embrace, for instance, modern technology, which they press into the service of propagating their particular version of Islam. Thus, the madrasa has an impressive, tri-lingual website (www.darululoom-deoband.com), which hosts hundreds of articles and thousands of fatwas, dozens of photographs, and a couple of books. Six booklets can be downloaded from the English section of the site, all written by senior Deobandi scholars. One of these, by Ashraf Ali Thanvi (1863-1943), among the pioneers of the Deobandi tradition, is titled Nikah [Marriage] in Islam. [i] Thanvi continues to be widely revered in Deobandi circles, a good indication of which is the fact that three of the six English booklets available on the madrasa’s website are translations of essays penned by him.
Since Thanvi’s booklet that purports to discuss marriage rules in Islam is hosted on the madrasa’s official website, one may take the booklet to represent the authoritative Deobandi interpretation of Islamic rules and practices related to marriage. Since the Deobandis assume, and fervently believe, that their interpretation of Islam is the sole authentic one, they do not feel compelled to qualify the title of Thanvi’s booklet as being a Deobandi interpretation of Islamic marriage rules. In this way, they conflate the particular Deobandi version of Islam with Islam itself.
An examination of Thanvi’s booklet is instructive in providing an insight of how the Deobandis imagine the institution of marriage and some of the many rules related to it that they consider as normative and binding. It can also help us better understand, and, at least partially, explain, the flurry of anti-women fatwas that routinely issue forth from the portals of the Dar ul-Ulum.
Contents of the Booklet
In the booklet, Thanvi discusses various rules and conditions that he believes must govern marriage among Muslims, and classifies them into the following sections:
1. The Conduct of the Marriage
2. Persons with Whom Marriage is Forbidden
3. The Wali or Legal Guardian
4. The Question of Compatibility or Kufu’
5. Mahr or Dower
6. Marriages of the Infidels (Kuffar)
7. Equality Among Wives in a Polygamous Marriage
8. The Virtues of Marriage
The rules that Thanvi sets out are presented in the form of short points, each limited to a paragraph or two. Since Thanvi’s intention is perhaps to provide only a summary of these various rules, he omits mentioning the sources of these rules, whether they be Quranic verses, Hadith reports or the writings of past Muslim jurisprudents or fuqaha. This greatly limits the value of the booklet while also leaving it open to the charge that many of its prescriptions might possibly be based on Thanvi’s own personal opinions, medieval fiqh or juridical rules, weak or fabricated ahadith or statements reportedly about or by the Prophet Muhammad, and faulty, literalist and non-contextual understandings of the Quran and ‘authentic’ ahadith, and so on.
The overall structure and system of Muslim marriage that Thanvi outlines corresponds to that prescribed by the medieval fuqaha or Muslim jurists of the Hanafi tradition. This is hardly surprising, given the fact that Thanvi, like other Deobandis, was an ardent defender and proponent of the Hanafi school of fiqh, insisting that Muslims of this school must strictly abide by taqlid, or what is sometimes translated as ‘blind following’, of the rules devised by the medieval Hanafi jurists. Islamic scholars who are critical of the Deobandis for their insistence on taqlid point out that this doctrine is sometimes deployed to prefer the opinion of a medieval jurist over the explicit commandment of the Quran or what is considered an ‘authentic’ saying of the Prophet. This, they argue, is Islamically unacceptable. Moreover, they contend, the doctrine of taqlid acts as a powerful deterrent to ijtihad, individual juristic reasoning, a practice sanctioned by the Prophet but which defenders of taqlid are, in practice, if not in theory, hostile to, thus reinforcing the stagnation of Muslim jurisprudence and its inability to change in response to new contexts and challenges.
Thanvi’s description of the rules and norms that he argues must govern Muslim marriage clearly indicates the latter, as he conceives it, to be a patriarchal institution based on a series of hierarchies: men above women; husbands over wives; Muslims of real or putative Arab origin over Muslims of non-Arab or Ajami origin; and ‘upper’ caste Muslims over ‘lower’ caste Muslims.
Marriage and Male Dominance
As Thanvi describes it, a marriage can be envisaged as an exchange between two men, the father or other male guardian of the bride, on the one hand, and the groom, on the other, the former being the giver of the woman and the latter the receiver. In this exchange, the bride need not play any active role at all, and can remain entirely silenced and invisibilised. Thus, he says:
“A marriage can be executed by just two words, e.g. a person says the following words in the presence of witnesses: "I give my daughter to you in marriage." The person who is addressed replies: "I accept her in marriage." In so doing, the marriage is valid and both of them are lawful husband and wife.”
For a marriage to be valid, Thanvi writes, it must be witnessed to by at least two male witnesses, or one male and two females. This equating one male witness with two female witnesses probably follows from his transposing the commandment contained in a Quranic verse that pertains to loans (2: 282) to the completely different context of marriage, something which Islamic modernists might probably find deeply problematic. Thanvi goes on to add, but without providing any textual support for this opinion, that, ‘If there are no males present, but only females, the nikah will not be valid even if there are ten females present. Together with two females, one male has to be present.’
Role of the Wali or Guardian
Reflecting the structure of medieval societies, in the medieval Muslimfiqh schools, including the Hanafi, males are considered the preferred guardians of a child. As guardians, they play a major role in deciding their spouses. This provision has been strongly countered by Islamic modernists and Islamic feminists, who point out that the social context, including relations between the genders, has today undergone such a radical transformation that this rule may be considered archaic, patently unfair, and downright misogynist. But not so Thanvi and the Deobandis generally, who continue to insist that the Hanafi prescriptions on the issue are valid and binding even today. Thanvi goes so far as to insist that a very distant male relative, such as a grand-father’s uncle’s great grandson, has a greater right to be the guardian of a Muslim child, and, in that capacity, to play the role required of a guardian in the child’s marriage, than the child’s own mother. Thus, he elaborates:
‘The first wali of a boy or girl is their father. If the father is not present, the grand-father becomes their wali. If he is not present, then the great grand-father. If none of them are present, the blood-brother becomes their wali. If he is not present, then the step-brother, i.e. brothers from one father. Thereafter, the nephew, thereafter the nephew's son; and thereafter, the nephew's grand-son. If none of them are present, the blood uncle becomes their wali. If he is not present, then the step-uncle, i.e. the step-brother of their father. Thereafter, the son of the blood uncle and thereafter his grand-son. Thereafter, the son of the step-uncle and thereafter his grand-son. If none of them are present, the father's uncle becomes their wali; and thereafter his children. If the father's uncle, his children and grand-children are not present; then the grand-father's uncle becomes their wali. Thereafter, his children, grand-children, and great grand-children. If none of them are present, the mother will be their wali.’
The role of a guardian in a marriage differs, Thanvi lays down, depending on whether or not the would-be spouses are ‘mature’ (with ‘maturity’ or ‘adulthood’ in the case of girls being recognised once they begin to menstruate) and on whether or not they are of equal social status. A ‘mature’ girl, Thanvi says, has the choice to marry or not to marry. She can marry whomsoever she wishes, provided the man is of her social standing or kufu’. If she marries such a person on her own, the nikah will be valid irrespective of whether the wali is informed or not, and irrespective of whether the wali gives his consent or not. This process appears remarkably egalitarian. All that the couple have to do is to arrange for two witnesses, and then one of the would-be spouses must say: ‘I am making my nikah with you’, and the other must reply,‘I accept’. In so doing, the marriage is sealed.
The rules are different, so Thanvi argues, for a mature woman who does not marry a person who is of the same social standing as her, and, instead, marries a person who is of a lower standing than her family. If her wali is not happy about this marriage, the nikah will not be valid. In this regard, the wali has a central role in ensuring that social hierarchies are not undermined by a hypogamous marriage, one that entails a woman marrying a man who, although a fellow Muslim, is considered of lower social standing than her. This sort of marriage is looked down upon in the Hanafi fiqh tradition probably because it inverts what is considered to be the normal relationship between the spouses, with the man meant to be ‘superior’ in status to the woman. This rule against hypogamy, which Muslim critics would argue violates the egalitarian ethics of the Quran, is related to the notion ofkafa’at or kufu’, which will be discussed below, and which forms the basis of a caste-like system among the Muslims of South Asia.
On the basis of their reading of the Quran, progressive Islamic authors argue that marriage in Islam must be based on the willing consent of both partners. The two cannot be married against their will or be forced, no matter how very subtly, into a marriage they do not approve of. However, according to Thanvi, a wali can perform thenikah of a mature girl without asking her or without seeking her consent. The validity of such a nikah will be dependent on her permission and consent. If she grants her permission, he writes, thenikah will be valid. If she does not grant her permission or is not happy with the marriage, the nikah will not be valid. That might seem somewhat fair enough, but when Thanvi writes that if a wali informs a young virgin girl that he has already, and without having informed her, married her off to a man, and, on hearing this, she either remains silent, starts smiling, or begins to cry, this response of hers would be considered to be her permission and consent to the marriage, it completely undermines the freedom of a woman to refuse such a marriage. After all, commonsense would suggest that if she cries on hearing the news of her being married off without her having been informed of it, it is more likely that she would do so in sorrow than joy, indicating her opposition to the marriage rather than her acceptance of it. Similarly, if she remains silent, perhaps out of embarrassment, fear, or reluctance to displease her wali by protesting against his having married her off without even informing her, her silence need not necessarily be construed, as Thanvi seems to do, as heart-felt acceptance of the marriage. In this way, these rules appear to wholly undermine the freedom, agency and autonomy that the Quran grants women in choosing their spouses.
Thanvi, like other medieval Muslim (and other) jurists, even sanctions child-marriage, that is marriage of minors who have not attained the age of sexual maturity, although there is nothing in the Quran that validates this practice. Walis can, he writes, arrange for the marriage of ‘immature’ children under their guardianship even without their consent. This is the case even though such children definitely do not have the capacity to make an informed decision about their own marriages. ‘The wali has full rights over such a boy or girl. He can get them married to whoever he wishes and refuse whoever he wishes. Immature girls and immature boys cannot reject such a nikah at that time,’ Thanvi insists. If the wali of a boy or girl is his or her own father or grand-father, and he performs the nikah of an ‘immature’ girl or boy, the latter, Thanvi claims, does not have the right to reject or repudiate this nikah even after he or she becomes mature. In short, the child, now an adult, is thus trapped into a marriage he did not approve of in the first place. Here, too, caution must be taken, Thanvi writes, that such marriages do not disturb the existing pattern of social hierarchy and inequality. Thus, he says, if the wali of an ‘immature girl performs her marriage with a person of a lower social standing, thenikah will not be valid from the very outset’.
If a minor girl is married off by a wali who is other than the father or grand-father, the rules are somewhat different. If the child in question is a minor girl and she has knowledge of the nikah, and if she does not have sex with her husband until she attains maturity, she can, in some cases, have the marriage annulled. In such a case, Thanvi writes, ‘the moment she becomes mature, she must mention her discontent’, but this must be said in front of a Muslim judge, who, in turn, would annul the marriage. Yet, even this possibility is not as widely and easily available as one might hope, for Thanvi adds the impossibly impractical rider, ‘Once she becomes mature and allows even a moment to pass in which she does not mention her discontent, she will not have the choice of having her nikah annulled.’ Other convoluted rules apply in the case of a minor girl who is married off by a waliother than a father or paternal grandfather, and whose husband has sexual intercourse with her before she attains maturity. Thanvi does discuss this possibility, in the process unabashedly sanctioning marriage that involves sex with a minor girl.
Other Gendered Rules
Civilising Mission
From the various rules of marriage that he describes, it is clear that Thanvi, like his fellow Deobandis, considers women as clearly subordinate to men. This subordination is reinforced by what comes across as a very deep-rooted understanding that women are biologically and congenitally ‘deficient’ as compared to men and hence in supposed need of being both taught as well as controlled by the latter. It is as if men are charged with a civilising mission with regard to ‘their’ women. Thanvi advises Muslim men thus:
‘You should continue teaching your womenfolk and inculcate respect and good manners in them. Do not allow them to become impudent and disrespectful. The intellect of women is deficient; it is therefore incumbent to take special measures in reforming them.’
Mahr
The mahr or dower that the groom pays or promises to pay the bride, which is an essential condition of a Muslim marriage, is often described in modern Muslim writings as a form of economic security that can, or should, help a woman tie over her economic difficulties in case of divorce. However, Thanvi effectively rules out the possibility ofmahr playing this role because although he insists that in Islam there is no limit to the maximum amount of mahr and that the bride can stipulate as much as she wishes, he suggests that ‘it is not good to stipulate a very high figure.’ The ‘best wife’, he says, ‘is one whosemahr is very simple. That is, it is very easy for the man to fulfil hermahr. These days, there is the habit of specifying a very high mahr. People should abstain from this.’
As long as the mahr is not paid, Thanvi concedes, a woman cannot be stopped by her husband from travelling out of the marital home. However, once he gives her the amount he owes by way of mahr, her freedom of movement out of their home, Thanvi indicates, must be completely curtailed. Henceforth, he writes, she now depends entirely on her husband’s consent to travel out of the home, having to seek his permission even to visit her own parents. It is as if by accepting themahr from him, the woman completely forfeits her freedom of movement. Thus, Thanvi writes, after the husband gives his wife hermahr ‘it is not permissible for her to go anywhere without his consent.’ ‘As for the husband,’ he adds, ‘he can take her wherever he wishes. It is not permissible for her to refuse him.’
Divorce
Since Thanvi’s booklet purports to discuss various ‘Islamic’ rules of marriage, it does not refer in any detail to divorce. The only references to the dissolution of marriage that it makes are in connection with two hypothetical cases of incest. In both the cases that Thanvi describes, the female victim is penalised for the misdemeanour of the man by having her marriage automatically dissolved. Why a perfectly innocent woman must be punished in this way for the actions of another person is left entirely unexplained. Thanvi provides no Quranic support for these absurd rules, which also is completely antithetical to the Quranic dictum that a person cannot be punished for the misdeeds of someone else. Presumably, these rulings are recorded in the classical compendia of Hanafi fiqh that Thanvi feels bound to uphold as normative and binding. Let Thanvi speak for himself in describing these cases and the bizarre rulings that he lays down with regard to them:
“In the middle of the night, a man decided to awaken his wife. However, he mistakenly touched his daughter or his mother-in-law. Thinking them to be his wife, he touched them with the passions of youth. Now, this man will become haram(forbidden) on his wife forever. There is no way in which she can become permissible for him. It will be necessary for him to divorce his wife.”
“If a boy touches his step-mother with an evil intention, she will become haram on her husband. There is no way in which she can be halal (legitimate) for him. If the step-mother touches her step-son with an evil intention, the same rule will apply.”
‘Social Compatibility’ or Kufu’
The Quran speaks of the ontological equality of all human beings, as well as of the fraternity of Muslims. Exemplifying this socially egalitarian Quranic ethics, a number of early Muslims are known to have married out of their clans and socio-economic classes, engaging in both hypergamous as well as hypogamous marriages. Yet, over time, with the establishment and expansion of the Muslim Empire, the relatively egalitarian Muslim communities in Mecca and Medina gave way to a sternly hierarchical social system, governed by elites who jealously guarded their privileges. Rules governing marriage also underwent a corresponding change. No longer was it considered possible or permissible for Muslims of different classes and ethnicities to freely inter-marry, for that would have directly undermined the new social hierarchies that had come into being. Instead, complicated rules were evolved, in the name of kafa’at/kufu’ or social compatibility that laid down who a person of a particular social class and ethnic group could be permitted to marry. One could, it was argued, marry only someone of the same kufu’. Very detailed rules of kufu’ were evolved by medieval Muslim jurists and formed an integral part of the teachings and formulations of the fiqh schools, including the Hanafi.
According to the Hanafi school, as understood by the South Asian Deobandis, kufu’ is to be decided, among other factors, by birth in a particular social group based on lineage (nasab). In the South Asian case, this corresponds to caste. Violating the Quranic equality of all believers, Hanafi jurists claimed that Arabs were of a ‘superior’ lineage than non-Arabs or Ajamis, a view that the Deobandis continue to echo. On this basis, they forbade the marriage of an Arab woman or a woman from a family that claimed Arab descent (Syeds, or putative descendants of the Prophet Muhammad, and Shaikhs, in the Indian context) with a man from a family that was not of Arab origin, for that, in their eyes, would have meant a forbidden hypogamous relationship. But the restrictions on marriage did not stop there. By taking birth in a particular caste or occupational group to be a defining factor in kufu’, the Deobandi Hanafis argued for an almost complete ban on marriage between ‘high’ and ‘low’ caste/class Muslims, being particularly harsh on hypogamous marriages, that is marriages between ‘high’ caste/class women and ‘low’ caste/class men. In this way, the Hanafi conception of kufu’, based, among other factors, on lineage, was deployed to justify caste, caste endogamy and caste-based hierarchy among the Hanafi Muslims, whom form the vast majority of Muslims in South Asia.
As ardent Hanafis who insist on rigid taqlid of the prescriptions of Hanafi jurisprudents, even if these appear antithetical to the Quran, the Deobandis insist that Muslims must follow the conventional caste-based fiqh rules related to kufu’ in deciding marital partners. Thanvi devotes much of his booklet to a defence of the doctrine of caste-basedkufu’, which, without providing any evidence or textual backing whatsoever, he claims is precisely what is mandated by the shariah or the divine path. Thanvi thus warns his readers not to ‘perform thenikah of a girl with a man who is not equal to her in status or who is of no match to her.’ In other words, he suggests, the bride and the groom must be from the same kufu’. Echoing the standard Hanafi position in this regard, he insists that kufu’ is to be decided on the basis of equality five factors: lineage, length of time the family has been Muslim, piety, wealth, and profession or occupation. If the prospective bride and groom are not equal with regard to one or more of these factors, he indicates, it is inappropriate for them to marry. As will be easily appreciated, these rules, put together, form a powerful basis for reinforcing and sustaining existing socio-economic hierarchies and inequalities in any society.
Justifying Caste and Caste-Based Distinctions
Thanvi devotes much attention to the issue of ‘equality in lineage’ in shaping kufu’, in the process very clearly highlighting how the notion of the superiority of Muslims who claim Arab descent over other Muslims, as well as caste differences and hierarchies (all of which have no Quranic mandate) have come to be legitimised in the Hanafi fiqhtradition, which the Deobandis erroneously equate with the divineshariah.
In line with the standard Hanafi prescriptions, Thanvi considers Muslims who claim Arab origin, who, in the Indian context, are Syeds and Shaikhs, to be the kufu’ of each other while being superior to other Muslims. Thus, he argues, it is permissible for Syeds and Shaikhs (to which caste Thanvi, like most other pioneers of Deoband, belonged) to marry among themselves. As he puts it:
‘Equality in lineage is that the Shaykh [and] Sayyid [...] are [...] equal to each other. In other words, although the status of aSayyid is more than the others, if the daughter of a Sayyidmarries a Shaykh boy, it will not be said that she did not marry someone who is of her family relations. Instead, it will also be regarded as if she has married one of her relatives.’
Besides Syeds and Shaikhs, two other largely endogamous groups among the South Asian Muslims exist who also claim foreign, and, therefore, ‘superior’ social status: Mughals and Pathans. Thanvi insists that these groups are lower than Syeds and Shaikhs, presumably because they are not of Arab origin. Thus, he writes:
‘The Moghuls and Pathans are regarded as one nation and are not of the same class as that of the Sayyids and Shaykhs.’
Because the Mughals and Pathans are, in his view, ‘lower’ than the Syeds and Shaikhs, Thanvi contends that if the daughter of a Syed or Shaikh marries a Mughal or Pathan man, she would be marrying out of her kufu’, to a person of what he calls ‘a lower social standing’. Such a marriage is not regarded as permissible in Hanafi fiqh in most cases. It is certainly not considered to be preferable, Thanvi indicates.
Curiously, while discussing fiqh-based kufu’ rules linked to lineage, Thanvi talks only of the various ‘upper’ caste or so-called ashraf or ‘noble-born’ Indian Muslim groups, but does not care to even mention the many other Muslim caste-like groups, who are of indigenous, mainly ‘low’ caste, origin, and who, taken together, form the vast majority of the Indian Muslim population. This clearly indicates, as Masood Alam Falahi brilliantly illustrates in his incisive study on caste discrimination among Indian Muslims, that the leading lights of the Deobandi movement (as in the case of many other such South Asian Muslim movements), who were almost all from the ‘high’ castes, paid scant attention to the ‘low’ caste Muslim majority, even treating them with utter scorn.[ii]
Although, contrary to his stance on the ‘upper’ castes, Thanvi does not name the ‘low’ castes specifically while discussing kufu’ based on lineage, he does refer to them indirectly while discussing kufu’ rules with regard to ‘equality’ of occupation as a necessary basis for marriage. Repeating the traditional Hanafi prescriptions in this regard, he argues that only spouses who come from ‘equal’ occupational groups (which, in South Asia, correspond to caste groups) can marry each other. If they come from ‘unequal’ occupational groups, marriage is ruled out, he suggests. This hierarchical ranking of occupations is, needless to add, completely alien to the Quran, and reflects, besides the influence of medieval feudal Muslim culture, the impact of the Hindu or, more specifically, Brahminical, prejudices and conceptions. Yet, although this notion has no Quranic backing whatsoever, Thanvi unabashedly insists:
‘Equality in occupation is that, for example, weavers are not regarded as equal to tailors and are accorded a status that is lower than that of tailors. Similarly, barbers, washermen, etc. are not regarded as being equal to tailors, but are regarded as being lower than tailors.’
Since Thanvi, like other Deobandis, champions blind adherence to Hanafi fiqh, he also insists on the validity of the Hanafi regard for the length of time a person’s family has been Muslim in deciding kufu’with regard to a potential couple. Here, too, considerations of caste and ethnicity come into play. Thus, Thanvi writes that this rule of equality in being Muslim for a certain number of generations does not apply to Arab Muslims or those who claim Arab descent, that is to say Shaikhs, Syeds, Alavis (descendants of the Imam Ali through wives other than Fatima, daughter of the Prophet), and Ansaris (descendants of the Ansars or the Medinese ‘helpers’ of the Prophet). On the other hand, he specifies that this rule applies to all non-Arab Muslim groups, including Mughals and Pathans.
This rule effectively debars male converts to Islam from marrying women from established Muslim families, thus posing major hurdles for converts and also, presumably, for Islamic missionary work. Thanvi lays down, without citing any Quranic evidence whatsoever, that, ‘A man who accepts Islam and his father was a kafir cannot be on par or equal to a woman who is a Muslim and her father was also a Muslim.’ Since the man in question is thus considered ‘lower’ in status than the woman, marriage between the two is not, Thanvi appears to suggest, advisable. Thanvi gives another example. A Muslim man whose father is also a Muslim but whose grandfather was a non-Muslim ‘cannot be equal’, so he claims, to a woman whose family has been Muslim for three generations. In other words, so Thanvi argues, this man cannot marry such a woman.
Conclusion
All of us are creatures of our own times and of the social worlds that we inhabit. Thanvi was, of course, no exception to this rule. His understanding of Islam was indelibly shaped by the particular context in which he was born, reared and worked. This context played a major role in shaping his ideas of what he regarded as normative or ‘Islamic’ rules for Muslim marriage. It was a context characterised by stern patriarchy and women’s subordination, as well as the virtually unchallenged supremacy of the so-called ashraf or ‘noble-born’ Muslims of foreign descent over the vast majority of ‘low’ caste indigenous Muslims. The role of these contextual factors in shaping some of the rules that Thanvi developed in his booklet for Muslim marriages is very definite and obvious. But the basis of the detailed set of rules that Thanvi insisted must govern Muslim marriages remained the Hanafi fiqh tradition. As a result of his insistence on taqlid of the Hanafi tradition, as we have seen, Thanvi argued for a range of rules and restrictions that very obviously are at variance with Quranic teachings and, at the same time, also justify male supremacy, women’s degradation, child marriages, forced marriages, and caste-based hierarchies and distinctions. Although the context we must contend with today has vastly changed, in terms of both caste and gender relations, the Deobandis, wedded to the doctrine of venerating their ‘pious elders’, to use a term they employ, do not recognise the need to modify or change many of these laws that denigrate both women and ‘low’ castes, although, as progressive Islamic scholars insist, they violate Quranic teachings that preach the equality of all believers, transcending gender, caste, class and other such barriers. That the Dar ul-Ulum, Deoband, hosts this booklet by Thanvi on marriage, probably written a century ago, on its website can be taken as a sign of its dogged refusal to budge from its stated position of blind taqlid of the Hanafi school and of its own ‘pious elders’. That, in turn, explains, partially at least, the anti-women fatwas that this biggest of all Indian madrasas keeps churning out with such nauseating regularity.
Yoginder Sikand works with the Centre for the Study of Social Exclusion and Inclusive Policy at the National Law School, Bangalore.
[i] Ashraf Ali Thanvi, Nikah [Marriage] in Islam, http://www.darululoom-deoband.com/english/books/nikah.htm. Accessed on 24th November, 2010.
[ii] Masood Alam Falahi, Hindustan Mai Zat-Pat Aur Musalman (‘Caste Discrimination in India and Muslims’), Ideal Foundation, Mumbai, 2009.
URL: http://www.newageislam.com/NewAgeIslamIslamicIdeology_1.aspx?ArticleID=3728
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