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«TRADITIONALIST APPROACHES TO SHARĪ‘AH REFORM: MAWLANA ASHRAF ‘ALI THĀNAWI’S FATWA ON WOMEN’S RIGHT TO DIVORCE by Fareeha Khan A ...»

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TRADITIONALIST APPROACHES TO SHARĪ‘AH REFORM:

MAWLANA ASHRAF ‘ALI THĀNAWI’S FATWA ON

WOMEN’S RIGHT TO DIVORCE

by

Fareeha Khan

A dissertation submitted in partial fulfillment

of the requirements for the degree of

Doctor of Philosophy

(Near Eastern Studies)

in The University of Michigan

Doctoral Committee:

Professor Sherman A. Jackson, Co-Chair Professor Barbara D. Metcalf, Co-Chair Professor Alexander D. Knysh Professor Muhammad Qasim Zaman, Princeton University for Ibbs ii Acknowledgements I have been blessed with two of the most generous, intellectually-stimulating advisors a woman could ever ask for. Dr. Sherman A. Jackson has served as a mentor in ways obvious and subtle, and my respect and fondness for him have only increased over the years. And Dr. Barbara Metcalf—her serendipitous arrival toward the start of my career at Michigan has been unbelievably fortunate for me. She has set a high example through her scholarship and in her absolutely selfless role as academic advisor.

The presence of Dr. Alexander Knysh and Dr. Muhammad Qasim Zaman on my committee has also proven to be of great value. Dr. Knysh’s warm personality and his gentle ways of encouraging his students are much appreciated. The astute comments and careful prodding of Dr. Zaman have provided important lessons that I will carry with me in my post-dissertation phase.

A number of ‘ulamā have also been a great source of support during the years spent working on the dissertation. Among them is Hafiz Ahmad Rabbani of Troy, MI, who was the first to help me get through the dense text of al-Hīla al-Nājiza. Mufti Abdurrahman ibn Yusuf also provided generous time and feedback on a few of the most difficult of the Hīla’s chapters. Shaykh Faraz Rabbani and his family had opened up their home in Jordan for an entire month so that I could cover the fiqh of marriage and divorce through an intense, daily-session routine. His deep insights, expansive knowledge of Hanafi law, and perpetual generosity have provided help beyond measure.

iii No one can get through dissertation-writing without a good support network.

Noura Shamma and Sumayya Ahmed are two old friends who have provided not only emotional but also intellectual support. Also, each year, in turn, my friends old and new in Michigan, New Haven, and Rochester, MN have helped me get through what potentially could have been lonesome days in new locales.

My family has patiently waited as I completed the work on my dissertation. Only sisters know what kind of bond we share; without the warm affection of my two siblings (and their tolerance of my quirks), I would really have become lost in my books. I would like to thank my mother for always being there, never flinching in her unconditional love.

As for Baba, he really should get the credit for any good that may come of this endeavor;

he is my first teacher, to whom I am forever indebted. And my husband…what can I say?

You have been my mainstay. This one is most surely for you.

iv

TABLE OF CONTENTS

DEDICATION………………………………..………………………………………….. ii ACKNOWLEDGEMENTS………………………………………………………………iii INTRODUCTION

Al-Hīla al-Nājiza: Ashraf ‘Ali Thānawi’s Fatwa on Women’s Right to Divorce.......... 1 Events leading up to al-Hīla al-Nājiza

Chapter I

Contextualizing al-Hīla al-Nājiza

Sharī‘ah and the ‘ulamā

Tradition as Process

Islamic Law in the Indian Subcontinent and the Challenge of Colonialism............. 22 Effects of the Colonial Presence: Communal Awareness and the “Woman Question”

The Need for a Muslim Response

Chapter II

Ashraf ‘Ali Thānawi on Taqlīd and Ijtihād

Orientalist commentary on the taqlīd and ijtihād debate: The Case of Joseph Schacht

Debating taqlīd and ijtihād in colonial India

Thānawi’s text on the taqlīd vs. ijtihād debate

Examples of Ijtihād in Thānawi’s Own Legal Work

A Prime Example of Thānawi’s Efforts Toward Ijtihād: al-Hīla al-Nājiza............. 73 Chapter III

Guidelines for the Jamā‘at al-Muslimīn: Rulings Related to Women’s Right to Divorce in al-Hīla al-Nājiza

Marriage and Divorce in Islamic Law

The Case of the Impotent Husband

The Case of the Insane Husband

The Case of the Missing Husband

The Case of the Return of the Missing Husband

The Case of the Miserly Husband

The Case of the Absent, Though Not Missing, Husband

Chapter IV

Tafwīd al-Talāq: Transferring the Right to Divorce to the Wife

Historical Presence of Tafwīd al-Talāq

Tafwīd al-Talāq in al-Hīla al-Nājiza: the Istifta

Important Counsel: Women’s Intellectual Deficiency

The Importance of Language

Chapter V

The Place of Women in Thānawi’s Ethical Conception of the Sharī‘ah

Thānawi the Traditionalist

v Challenging Ideas on the Wife’s Proper Place in the (Traditional Indian) Home.. 163 On Women’s Leadership





Gender Differentiation and the Essential Sameness of Women and Men.............. 185 Women and Ethics in the Broader Conception of Sharī‘ah

Conclusion

Understanding Sharī‘ah Application in Minority Muslim Contexts through the Lens of al-Hīla al-Nājiza

Bibliography

–  –  –

For the past two centuries the main criticism leveled against the ‘ulamā, the traditionally educated Muslim religious scholars, is that they are unwilling to engage in ijtihād. The critics assert that times have changed, our social context is not that of the peoples for whom Islamic law as preserved in the law books had been formulated, and for this reason it is necessary to “exert effort” (the verb root for the term ijtihād) in order to come up with a new vision for how to live Islam as Muslims in the modern world.

Clearly related to this criticism is the idea that the ‘ulama are out of touch with contemporary life.

Those who have called for ijtihād, be it Muhammad ‘Abduh (d. 1905) in 19th century Egypt, Muhammad Iqbāl (d. 1938) in 20th century pre-Partition India, or “progressive Muslim” activists in the 21st century United States, have been dissatisfied with the ‘ulamā’s consistent aloofness in the face of modernist discourses on ijtihād. In their desire to preserve the integrity of the tradition, and in the face of severe critique of the current relevance of the Sharī‘ah, modern ‘ulamā have often retreated to a posture of defensiveness and apologetics. Due to such distancing from the entire enterprise of “reform,” the ‘ulamā have then been labeled as being reactionary, rigid, fundamentally unchanging in their legal and religious views. The label has definitely stuck, such that many academic scholars of Islam, Muslim activists, and even some lay Muslims believe the ‘ulamā to be simply a relic of the past.

The essential problem however is not that the ‘ulamā are unwilling to engage in ijtihād. Many ‘ulamā of the modern period, particularly those who are most highly trained, continue to see the importance of taking into account contemporary context when explicating the application of the Sharī‘ah. Still, despite the ongoing creative legal thought within the work of contemporary ‘ulamā, those outside these scholarly circles persist in faulting the ‘ulamā for “resistance” to ijtihād. The reason for this inability to perceive the vitality of the ‘ulamā’s work stems from the fact that each group is utilizing a very different definition of the term “ijtihād.” Modernists and traditionalists seem to be talking past each other on the topic of legal reform, and this is so because they have a fundamentally different view about where this reform should come from, and how it should develop.

In the Islamic tradition, the term ijtihād has had a specific meaning and role. It is a legal term, describing a legal function, where a jurist, using the primary sources as a backdrop and the methodological tools (usūl al-fiqh) and past precedent as guidelines, adjusts existing laws or develops new ones in order to maintain relevance and applicability. For the ‘ulamā, long-settled issues of Islamic law form the base of the Islamic legal edifice, and as in other legal systems, provide an essential and aspired-to structure of coherence and consistency. It is this legal tradition that forms the justification for the legal work of the ‘ulamā, and is the source from which they derive their authority.

This does not mean however that they view the tradition to be a stagnant body of law.

Those legal rulings not decisively established through the primary texts of the Quran and the Traditions (hadīth) of the Prophet Muhammad, and those that had originally had their roots in the custom and practice of a particular social context, continue to be open to debate and reevaluation when necessary.

Modernists however do not see the term ijtihād as a solely legal discourse.

Instead, they use it as a way to encourage social mobilization and intellectual rejuvenation. For the Indian philosopher Iqbāl, ijtihād was “a principle of movement”, 1 for present-day liberal Muslims it is “engaging and transforming the social order and the environment in a just and pluralistic fashion”. 2 In these circles there is not much discussion on how this ijtihād is supposed to occur, what form it should take, if it should take place within a formalized methodological system, or its relation to past precedent. In many cases, even the value and role of the primary sources themselves are not agreed upon, with many thinkers propagating the rejection of hadīth and the apparent meaning of Quranic verses that do not fit the given social agenda. The notion of ijtihād held by modernist Muslims not only criticizes the contemporary relevance of specific points of Islamic law; it also aims to revisit important epistemological issues, calling into question the reliability and authoritativeness of the primary source material and of core Islamic doctrine.

For the ‘ulamā, who have historically seen themselves to be the custodians of tradition, such a definition of ijtihād is simply not tenable. Questions on the reliability of the source material and the legitimacy of agreed-upon tenets of faith must necessarily be seen to be long-settled, if only to allow for a level of continuity in Islamic belief and practice. Their hesitation in the face of modernist calls for ijtihād is understandable if one Masud, Iqbal’s Reconstruction of Ijtihād, 103.

Safi, “Introduction,” in Progressive Muslims, 8.

recognizes that the role of the ‘ulamā is essentially one of bringing order and systematization to the way the lived reality of Islam is articulated and promoted.

However, the ‘ulamā themselves recognize, as they always claim to have done so, that to truly have a “livable Islam,” ijtihād in the case of non-decisively established legal matters is a necessity. They argue that without the ability to reevaluate specific legal rulings according to changing space and time, the work of the jurist can only lead toward an oppressive and stifling adherence to the pre-existing body of Islamic law. 3 This dissertation takes up the issue of ijtihād, creative legal reform, as defined and upheld by contemporary ‘ulamā. It centers in on a particular issue—women’s right to divorce—within a particular context—mid 20th century colonial India—as a way to highlight the approaches of traditionalist Muslim scholars toward Islamic law, legal reform and the continuing relevance of the Islamic legal tradition.

In 1933, 4 the renowned Hanafi jurist Mawlana Ashraf ‘Ali Thānawi published an important treatise, which would later hold significant implications for Muslim women’s right to divorce in India and abroad. This long fatwa, entitled al-Hīla al-Nājiza li’lHalīlāt al-‘Ājiza (The Successful Legal Stratagem for Helpless Wives), 5 was essentially a treatise on the need to reform divorce laws. In cases where the husband was unwilling, See for example ibn ‘Abidīn, Nashr al-‘urf.

In his signature at the end of the treatise, Thanāwi dates the treatise as being completed in the eleventh month of 1351 AH. Some have converted this date to 1931, but it actually corresponds to about February, 1933.

The text has also been reprinted under a slightly different title, with subtitle in Urdu instead of Arabic:

“al-Hīlat al-Nājiza, ya‘nay Aurtaun ka Haqq-i Tansīkh-i Nikāh” (The Successful Legal Stratagem:

Women’s Right to Abrogating the Marital Contract).

the Hanafi school had traditionally allowed women no recourse to divorce save through the presence of a Muslim judge who could review the most serious cases in order to decide whether or not to pronounce divorce. The Anglo-Muhammadan courts of British India attempted to apply Hanafi law in such civil matters, but since their courts did not usually have Muslim judges adjudicating these cases, observant Muslim women were forced to seek out a legal dodge, or “hīla,” in order to escape their failing or abusive marriages. The only recourse they could find (which was also a step encouraged by Christian missionaries in the early 1900s 6 ) was to renounce Islam, to declare themselves to be murtadda, which according to the Hanafi school would automatically dissolve the Islamic marital contract. In an initial fatwa about this course of action, issued in 1913, Thānawi took a strong stance against the apostasy of such women and condemned their actions outright, without really providing them with an alternative. But as the women’s resort to apostasy received more and more attention in Muslim circles, Thānawi put out a legal device of his own in 1933, al-Hīla al-Nājiza, in order to provide “a more direct route of salvation” for women who become so “desperate and distraught” that they are forced to leave Islam in order to escape their marital situations.



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