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Fatwas can be changed

May 04, 2012

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RECENTLY a conference of the Muslim Personal Law Board in India saw a huge crowd of 200,000 Muslims from all over Maharashtra.

The chairman of the board, Maulana Rabe Hasan Nadwi, made a highly emotional speech and said that Sharia is divine and no change in it can be made; even if the whole Islamic world changes Sharia, Indian Muslims will not allow any change and will keep traditional Sharia close to their hearts.

How appropriate is this stance? Today many women are agitating for certain necessary changes to issues such as triple talaq and unregulated polygamy which cause suffering to them. Some concerned people, including myself, have taken the initiative to codify Muslim personal law so as to minimise its misuse and give relief to Muslim women.

To what extent Sharia can be misused can be judged from the fact that a well-known Islamic university in Hyderabad Deccan allowed a man to marry two young girls simultaneously on the assumption that Islam allows polygamy.

All this is based on books written and fatwas issued hundreds of years ago. Our ulema do not want to deviate from these written texts. Whenever any question is asked they simply consult these texts and issue a fatwa and again, like court judgements, these fatwas become a precedent for subsequent edicts and are treated as universally applicable. Lay Muslims do not know that these fatwas are merely opinions expressed by a mufti and are not binding.

Should fatwas issued by eminent ulema be treated as unchangeable? Or can they be changed with time and place? Generally, Sharia is thought to be divine and immutable and no human being can make any changes in it. In fact, Sharia laws have been developed by eminent imams like Abu Hanifa and others to meet the requirements of their time and place. Thus Sharia can be described as a sincere human approach to divine intention. It is well known that when Imam Shafi’i shifted to Egypt, he changed his opinion on several fiqhi (jurisprudential) matters.

Recently I saw a book by Sheikh Yusuf al-Qaradawi, a well-known scholar highly respected in the Arab world. It is on the subject of fatwas and the necessity for changes in fatwas. Yusuf al-Qaradawi has invoked the principle of ijtihad in Islam to justify changes in fatwas. The sheikh even maintains that Sharia cannot be useful for the ummah unless ijtihad (he indicates several forms) is exercised from time to time.Sharia, it is important to note, must remain dynamic and relevant to the time and place where it is applied. Fundamental principles and values on which Sharia is based cannot be changed, but the laws based on these principles and values should and must change from time to time to keep them relevant and useful. That is why in most Islamic countries traditional Sharia laws have been changed or codified to make them as useful as they once were.

Al-Qaradawi has given 10 grounds on which fatwas can be changed; all these grounds are highly relevant. First, he gives four grounds on which fatwas should change i.e. change in time, change in place, change in conditions and change in what he calls ‘urf (social practices or traditions). The Quran also uses the term ma’ruf in this sense. Then he gives six more grounds for desirability of change which are: change in knowledge; change in needs of people; change in capabilities of people; spread of calamity (when some acute problem becomes common); change in collective political or economic condition and change in opinion or thought.

These 10 grounds, in fact, capture all possible changes which can take place in a given society. This makes it amply clear that Islamic jurisprudence is by no means static or immutable as commonly thought but it has enough space for change. It is altogether another matter if our ulema are rigid or incapable and try to hide behind the divinity of Sharia. In fact, if any law remains static it cannot meet the requirements of society.

Today personal laws — as developed during the mediaeval ages — need many changes. It is also well known that Sharia law during that period had incorporated many Arab customs and traditions as ma’ruf, and triple divorce was among them. The Prophet (PBUH) had denounced this particular practice as the Quran intended to empower women and give them equal status and no one practised it during his time. However, it was later on reintroduced for certain reasons.

Today, women are highly aware of their rights and such practices are against the principle of equality, which is more fundamental than any Arab custom. Still, it is practised in countries like India and even thought to be divine. Similarly, polygamy is much misused and also thought to be a man’s privilege. It has to be regulated and should not be allowed to be used as per one’s whim. No woman would accept it today as they did in the past.

Mediaeval formulations in respect to personal laws were also influenced by patriarchal values and today patriarchal values are being challenged, especially by women.

Polygamy should be allowed only in cases where it is very necessary. Similarly, other personal laws could also be reviewed if needed. It would greatly benefit the ummah if our ulema kept the abovementioned 10 grounds in mind while giving their opinion in matters of Sharia.

The writer is an Islamic scholar who also heads the Centre for Study of Society & Secularism, Mumbai.