By Asghar Ali Engineer
THE Quran indeed had ushered in a revolution as far as women’s rights were concerned. Women hardly enjoyed any rights before Islam in marriage, divorce or inheritance. They were left totally dependent on father, husband or brother and had no individual identity. The Quran straight away gave them distinct individual, legal personalities. At the time women did not enjoy such status anywhere in the world. In fact even philosophers like Aristotle thought women and animals had no soul. However, this revolutionary approach to women’s distinct individuality was hardly acceptable to Arab society.
Arabs were, by and large, a patriarchal society and wanted to keep women under their thumb. But after Islam became a national religion for Arabs they could not easily deny what the Quran gave to women. Thus many found a via media of hadith and thousands of traditions were falsely attributed to the Prophet of Islam (PBUH) that were quite derogatory to women and sought to take away from them what the Quran had given them.
Women, by the time the Umayyads took political power, had again lost their equality given by the Quran, and after Islam spread to Iran and parts of the old Roman empire influences of feudal culture overpowered the thinking of Islamic jurists and that further eroded women’s status. Women were again confined to the home. It became their duty to obey their husbands and not to go out without permission.
According to one hadith the Prophet said that if sajda (postulation) were permissible to man he would have ordered the wives to postulate before their husbands. Such ahadith are widely publicised to subjugate women to their husbands. On the basis of some ahadith of doubtful origin women were even denied the right to enter mosques at times. While a woman was given unequivocal right by the Quran to enter into marriage of her own free will, and without her consent no marriage could be valid, many traditional jurists held that even her silence amounted to her consent. They said that if she cried it should be taken as her consent because she was crying at being separated from her parents.
Thus we see that a conservative patriarchal society left its deep imprint on the minds of traditional Islamic jurists. What is more unfortunate is that the ulema subsequently developed the doctrine of taqlid (blind imitation), and nearly forbade ijtihad or fresh thinking about what was formulated in terms of jurisprudence more than 1,200 years ago. Not only this, the ulema also did not allow women to follow the provisions of a religious school other than her own if that benefited them.
Thus, women following the Hanafi school could not benefit from any provision in the Maliki school even if it was beneficial to them. The four schools in Sunnism i.e. the Hanafi, the Shafii, the Maliki and the Hanbali, were products of human thinking and the interpretation of Quranic pronouncements. Hence, they, by no stretch of the imagination, could be held as ‘divine’ or immutable; yet these schools of interpretation of Islam acquired an almost divine status. Lay Muslims came to believe that the laws framed by the respective founder-jurists of these schools of religious thought were immutable.
No one can say that we should reject the entire corpus of ahadith, but it must be said that we must rigorously screen all ahadith, including those from Sihah Sitta i.e. the six authentic collections, and re-evaluate those which contradict Quranic pronouncements. In other words the Quran must have precedence over hadith, which is an accepted rule while interpreting the Sharia. Given our challenges today, modern-day Muslim scholars will have to develop a new science regarding the principles of jurisprudence.
For this we will first have to define the basic principles culled from the Quran which must be applied for framing any law pertaining to marriage, divorce, inheritance, custody of children, etc., to safeguard women’s rights given to them by Allah. The doctrine of justice is very fundamental to the Quran. No law which contradicts this doctrine can be admissible. The Quran itself has applied this doctrine, say, in the case of polygamy very rigorously, and declares that if you fear you cannot do justice, then take only one wife.
Unfortunately most of our jurists ignored this qualification for the permissibility of four wives, and that number became more fundamental than justice. They also ignored that verse 4:3 was revealed to do justice to widows and orphans and to protect their properties. It can be argued that the injunction applied only to widows and orphans to ensure protection of their properties.
Our jurists even incorporated many pre-Islamic customary practices (aadat), and they too became part of Islamic law. Thus triple divorce in one sitting which was strictly banned by the Prophet also became part of the Sharia, and today thousands of women in India are victims of this arbitrary law. The Quranic right of khula which, according to one non-controversial hadith, the Prophet declared as the woman’s absolute right, was subjected to the husband’s prior consent. Now husbands leverage this ‘right’ to give conditional consent to divorce or to deny it to their wives.
Such examples in the existing Sharia laws underscore the need to restore Quranic rights to our women, and to reclaim the individual personality and the dignity accorded to women by Islam.
The writer is an Islamic scholar who heads the Centre for Study of Society & Secularism, Mumbai.