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Published in the 1-15 Feb 2004 print edition of MG; send me the print edition

LAW WATCH
Fatwas on violence against women

By Tahir Mahmood

Tahir MahoodThe media has recently reported a judicial decision handed down by a court in Spain under which a local imam who chose to write a book on Islamic religious law relating to matrimonial relations has been convicted of the offence of inciting inter-spousal violence. Back home in India an imam in West Bengal has reportedly announced a 'reward' for anyone who can blacken the face of or garland with shoes the notorious visiting Bangladeshi writer Taslima Nasreen accused of having insulted Islam in her writings. Both these imams are being projected in the Indian and foreign press as votaries of "Islamic" violence against women, adding another dimension to the reprehensible caricature of Islam as an archaic religion encouraging its followers to practise the cult of violence in and outside their homes.

Does Islam indeed allow inter-spousal violence ? None of the high-authority textbooks on Muslim law widely used by the modern courts - those of luminaries like Abdur Rahim, Amir Ali, Tyabji, and Fyzee among them - even remotely mentions any Islamic 'precept' permitting any form of violence between married couples. Nor has any such precept ever found a place also in any of the non-Muslim authors' popular books on the subject including DF Mulla's century-old Principles of Mahomedan Law -- now running in 19th edition and still the most favoured work in the English-speaking courts - which does misrepresent some principles of the Sharia law. Even orientalists like Joseph Schacht known for their unsavoury criticism of Islamic law never had the cheek to point out such a thing in their biased exposition of that noble law. For the last thirty five years I have been personally collecting and publishing in my books texts of family-law statutes of the contemporary Muslim countries. For sure, I have never found in any such statute any provision even remotely approving inter-spousal violence in any context.

Where did, then, the learned imam in Spain find his words? Such problems are bound to arise when theologians of our times, naively assuming the mantle of exponents of law, fail to distinguish between the positive law of Islam and religious texts of a general nature not regarded ever in Islamic legal history as judicially enforceable rules. They sometimes choose to mix up a literal translation of some such texts with what are Islamic legal provisions in the true sense of that terminology. This is obviously against Islam's own well-established principles of jurisprudence and legislation. A certain verse in the Holy Book of Islam teaches Muslim men how to try to salvage marital relationship where a recalcitrant wife is hell-bent to break it by her extraordinarily indecent behaviour. The ancient Arabic vocabulary used in this verse is susceptible of many meanings, and it is indeed a great folly to subject it to a literal translation into a modern language of our times. In any case, whatever be its true meaning, it has never entered the realm of law in any form anywhere in the Muslim world. It is this verse a literal translation of which mindlessly included by the imam in Spain in his work on matrimonial relations landed him into trouble under that country's law. This shows that the exposition of Islam's socio-legal precepts is a very hazardous job which must never be taken up by theologians not well versed in Islamic jurisprudential principles and legislative procedures. 

In recent years such a thing has happened in our country as well. At the turn of the century the All India Muslim Personal Law Board came out with a new Urdu compilation of the Hanafi principles of personal status and published it under the title Majmu'ah-e-Qawanin-e-Islami ["collection of Islamic laws"]. Apart from its obviously misleading title - Hanafi law being only one of the various versions and schools of Islamic law - this compilation also made the mistake of mixing up with legally enforceable rules a few generic texts which no book of Islamic law proper has ever treated as "law". Among these was also the Quranic verse a literal translation of which caught the fancy of the imam in Spain. When the late Qazi Mujahid-ul-Islam Qasimi asked me to translate the Board's compilation into English - expressing a pious hope that it would gradually "replace in the lawyers' chambers and courts the un-authentic books on Muslim law" -- and I accepted the assignment as a solemn duty to the community, I faced the dilemma of how to deal with the situation. A 21st century book meant to be used by the lawyers and judges of our times as a new authentic code of Muslim law could, obviously, have no place for what the Muslim world at large has never treated as "law"; and I quietly did whatever best I could to salvage it from such devastation.

It is indeed unimaginable that the Holy Qur'an could have tolerated, leave alone enjoining, inter-spousal violence. Its verses describe marriage as a mithaq-e-ghaliz (solemn covenant) - a hisn (castle) into whose security married men and women move and become muhsan and muhsanat (protected men and women). With this concept of marriage how on earth could the Holy Book 'allow' violence between the parties in the privacy of that 'castle'? A call from a mosque for humiliating a woman in public by having resort to some archaic practices, too, can have no place in Islamic law or ethics. A religion whose scripture is replete with verses exhorting people to show utmost respect to women's modesty and dignity, and whose Prophet described the weaker sex as qawarir (tender glasses) to be handled with care, could never have authorized religious functionaries to issue such edicts. Taslima's audacity to humiliate Islam does indicate an abominable morbidity on her part and may be seen as an offence under the Indian law. But under both the Indian law and in Islam it is for the State - the ruling authority and the courts - to deal with such sick brains and offenders. For certain Islam does not authorize laymen, or even god-men, to take law into their own hands. They can be only complainants or prosecutors, not judges suo motu pronouncing inhuman penalties. 

All of us have to appreciate the fine distinction between Islamic theology and Islamic law and try to understand and appreciate even the rules of the former in their true historical perspective. This is absolutely imperative to save our noble religion from the false and wholly undeserved stigma of being "anti-women" in respect of its law and rules of social behaviour.
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