Deobandi Controversy

The Controversy ... The Deobandi Fatawa A larger controversy emerged when a few high-ranking moulanas from Darul-Uloom Deoband issued a fatawa in this matter, the relevant portion of which is stated below; ‘If someone has committed adultery with the wife of his son, and if this has been proved by the depositions of witnesses, or if his son confirms it, or if the woman herself admits and confirms it, (then) the wife of the son becomes Haraam (forbidden) forever for the son. If the father copulates with a woman either legally after marriage, or illegally without marriage, in both cases, it becomes Haraam for a man [son] to keep her in his marriage. It is mentioned in the Qur’aan, ‘wa la tankihoo ma nakaha aaba-o-kum’ [‘And marry not women whom your fathers married.’ (4): 22], i.e., the son should separate himself from his wife and never go to her…’ Habibur Rahman, Mufti, Darul-Uloom, Deoband. This fatawa was also approved by [Muftis] Kafilur Rahman and Muhammad Zafiruddin. This fatawa was in accordance with the known position of the Deobandis in similar cases, as mentioned in their well-accepted fatawa collection, Fatawa Rahimiyah. ‘Adultery does not cause divorce, but in certain cases the prohibition of matrimonial alliance (Masaaharah) is established by which the wife becomes unlawful to the husband forever. For example, (if) the woman indulges in adultery with her husband’s son, she will become unlawful forever for the husband but the marriage-bond will not break.’ [Fatawa-Rahimiyah (vol.2, Kitab at-Talaq, p.121) This fatawa was based on Durr-e-Mukhtaar and Shami, (vol.2. P.386-7)]

The Deobandi’s Insistence that the Fatawa is in Accordance with the Qur’aan The Deobandi’s Insistence that the Fatawa is in Accordance with the Qur’aan* Following the fatawa issued by Muftis from the Darul-Uloom Deoband, many statements were given to the media by various Deobandi moulanas strongly endorsing this fatawa. Their statements implied that the fatawa of the Darul-Uloom Deoband is the judgment of the Qur'aan, which leaves no room for disagreement. Anyone, who opposes the fatawa, is opposing the Sharee'ah and Islam. Maulvi Muhammad Ahsan Qasmi, deputy Mufti of the Darul-Uloom Waqf, Deoband, asserted that if someone were to counter the Deoband fatawa and decide that Imrana’s marriage remains intact, it will be ‘construed as interference in the religion,’ since such a decision would be opposed to ‘the clear commandments of the Qur’aan.’ In such a case, Imrana will have to decide whether to accept the verdict of the court or ‘bow her head before the Qur’aan and the commandments of the Shareeah.’ Maulvi Habibur-Rahman Khairabadi, Chief Mufti of the Darul-Uloom Deoband, said that he saw the issue as being ‘directly related to the Qur’aan,’ and insists that ‘a matter clearly specified by the Qur’aan cannot be debated.’ Mufti Mukarram Ahmad of Delhi mentioned that if a man so much as touches any part of his daughter-in-law’s body with lust, her marriage to her husband is dissolved. How then, he

asks - defending the Deoband fatawa - can a woman raped by her father-in-law remain married to her husband? Note: This is the actual Deobandi position as will be explained later in the article. Moulana Mohammad Masood Madani, was quoted as saying, ‘She had a physical relationship with her father-in-law. It does not matter if it was consensual or forced,’ and, ‘Any Muslim who opposes our fatawa is not a true Muslim and is betraying Islam.’ In reality, the Deobandi fatawa is not directly related to the Qur’aan because no verse in the Qur’aan explicitly rules on the annulment of marriage as a consequence of adultery or sexual assault. It is for this reason that Islamic jurists disagree amongst themselves in this issue.

The position of the Deobandis is based upon the view that any physical relationship, regardless of whether it occurs in a lawful or unlawful manner, establishes Hurmat al-Masaaharah. * The quotes mentioned under the sub-title, ‘The Deobandi Insistence…’ are mostly from the article, ‘Imrana and the Sharee’ah Controversy’ by Yoginder Sikand and have also been widely reported by the media.

What is Hurmat al-Masaaharah? What is Hurmat al-Masaaharah? The Qur’aan specifies women, whom a man cannot marry in the verse: ‘Forbidden to you (for marriage) are: your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters, your foster mothers who suckled you, your foster milk suckling sisters, your wife’s mothers, your stepdaughters under your guardianship, born of your wives unto whom you have gone in - but there is no sin on you if you have not gone in unto them (to marry their daughters), - the wives of your sons who (spring) from your own loins, and two sisters in wedlock at the same time, except for what has already passed. Verily, Allah is Oft- Forgiving, Most Merciful.’ [Soorah an-Nisa (4): 23] Imam Ibn Katheer (rahimahullah), an outstanding scholar specialized in the interpretation of Qur’aanic verses, has written in the Tafseer (interpretation) of the above verse, ‘This honorable verse is the verse that establishes the degrees of women relatives who are never eligible for one to marry because of blood relations, relations established by suckling or marriage.’ The Qur’aan, thus specifies three categories of women, who are mahram and therefore, not eligible to be taken in marriage; a) The mahrams by blood relations are (as in the verse); your mothers, your daughters, your sisters, your father's sisters, your mother's sisters, your brother's daughters, your sister's daughters. b) The mahrams by fosterage are those who have been suckled by the same woman, for example, a boy and a girl who have been suckled by the same woman will be considered as brother and sister, regardless of the differences of blood relation between them.

c) The mahram by marriage are the mother-in-law, daughter-in-law, wife’s daughters, husband’s sons, etc. This concept of mahram by marriage is termed as, ‘Hurmat alMasaaharah’, and by it, a sanctity is established between a man and a woman that forbids marriage between them. Therefore, if a father marries a woman through the legal Nikah procedure then she becomes Haraam upon the sons of her husband forever, as if she has attained the status of their real mother. And if a man marries a woman, then she becomes Haraam upon the father of her husband forever. But if a man commits adultery with a woman who is married to his son(i.e. his daughter-inlaw), Will she become Haraam for her husband ? Will she be considered as the mother of her husband? This is the issue of contention. The opinion of the majority of the scholars from amongst the Sahabah, Taba’een, Taba’Taba’een and Fuqaha is that ‘Hurmat al-Masaaharah’ is only established through the lawful (Halaal) process of Nikah (marriage) and not by the forbidden (haraam) act of Zina (adultery) because of the fundamental principle that ‘a Haraam (action) does not prohibit (make Haraam) that which is Halaal’, ‘La YuHarrimul-Haraamu al-Halaal.’ Imam Ibn Hajr (rahimahullah) reports in Fathul-Baree, ‘Darqutni and Tabaree have related from Aa’isha (radhi allahu anha), ‘…Allah’s Messenger (sallallahu alahi wa-sallam) said, ‘Haraam (action) does not prohibit (make Haraam) that which is Halaal.’ In its isnad is Usman ibn AbdurRahman al-Waqasi and he is Matrooq Also Ibn Majah has related a part of the Hadeeth from Ibn Umar, ‘Haraam (action) does not prohibit (make Haraam) that which is Halaal.’ The isnad of this Hadeeth is more authentic than the previous Hadeeth (of Aa’isha).’ [See, Fathul-Baree (the Book of Nikah)] Imam Bukharee reports in ‘the Book of Nikah’ under chapter ‘25. What women are lawful for one to marry and what are unlawful’ (Eng. Trans. vol. 7, pg. 30), statements from Ibn Abbas (radhi allahu anhu) which explain that Hurmat al-Masaaharah is not established in cases where zina or illegal copulation occurs based upon the above-mentioned fundamental rule. Ibn Abbas (radhi allahu anhu) said, ‘If somebody commits illegal sexual intercourse with his wife’s sister, his wife does not become unlawful for him.’ In the explanation of this quote, Imam Ibn Hajar has mentioned similar quotes from Ibn Abbas (radhi allahu anhu) and said, ‘this is the statement (the opinion) of the majority, while a group has disagreed.’ [See, Fathul-Baree] Imam Bukharee related from Ibn Abbas (radhi allahu anhu), ‘If someone commits illegal sexual intercourse with his mother-in-law, then his married relation to his wife does not become unlawful.’ Imam Ibn Hajar writes, ‘al-Bayhaqee has also related this from Hisham from Qatadah from Ikrimah concerning a man, who commits sexual intercourse with his mother-in-law, he said, ‘He has committed two Haraam actions (*1) and his wife does not become unlawful for him.’ and its isnad is authentic.’ [See, Fathul-Baree] Footnotes: *1: One of committing zina (illegal sexual intercourse) and the second of violating the sanctity of Hurmat al-Masaaharah with his mother-in-law.

Imam Ash-Shafa’ee’s debate with an Iraqi Hanafi Imam Ash-Shafa’ee’s

DEBATE

with an Iraqi Hanafi, who considered that Hurmat al-Masaaharah is established as a result of Zina Quoted from I’lam al-Mu’aqqi’een by Imam Ibnul-Qayyim

Imam Shafa’ee:

Zina does not make Haraam, that which is Halaal. This is the saying of Ibn Abbas (radhi allahu anhu). (This is) because Haraam is the opposite of Halaal and something cannot be compared (Qiyas) with its opposite.

The Iraqi:

What do you say about (the case) when a man’s wife kisses his son (i.e. a woman kisses her husband’s son) with lust. Does she become unlawful (haraam) for her husband forever?

Imam Shafa’ee:

Why do you say so, whereas Allah has forbidden the mothers of your wives (to be taken in marriage) due to Nikah (with their daughter, and not due to zina). Therefore, it is not permissible to make a comparison of Haraam (zina) with Halaal (nikah).

The Iraqi:

(In any case) copulation took place.

Imam Shafa’ee:

One type of copulation is praiseworthy and leads to chastity, and the other type is punished. One of them is a calumny and the other is a blessing, by which Allah establishes the lineages and in-laws relationships, and by it the rights of people become obligatory, and by it, He makes you a mahram of your wife’s mothers and her (i.e. the wife’s) daughters so that you can be their escort during their journey. (whereas) Allah has prescribed a punishment for zina in this world and of hell-fire in the hereafter except if Allah Forgives. Thus (this is a) Qiyas of Haraam, which is a cause of (Allah’s) Wrath, over the Halaal, which is a blessing.

Imam Consider a woman, who has been divorced thrice and who can become Halaal (for Shafa’ee then her former husband) only after she has married another man and consummated the posed a marriage (and if by circumstance, this marriage ends due to divorce or other question: reasons). Will she also become Halaal (for her former husband) by committing zina with somebody else because you do not distinguish between the two copulations?! The Iraqi:

This is a mistake because Allah has made her Halaal (for her former husband), only through nikah to another husband.’

Imam Shafa’ee:

Likewise is (i.e. Hurmat al-Masaaharah) that Allah has prohibited (i.e., the prohibition of marriage to women who are mahram by marriage) in His Book by way of nikah with a spouse and by way of consummation of that nikah.

The Iraqi Is there anything that becomes Haraam due to a Halaal (act) but it would not asked for an become Haraam due to a Haraam (act)? example: Imam Yes – A man marries four women (and this is a Halaal practice), which makes it

Shafa’ee:

Haraam for him to marry a fifth one. Will it also become Haraam for him (to marry the fifth one) if he commits zina with four women (which is a Haraam practice)?

The Iraqi:

No! The Haraam (act) does not prohibit for him what a Halaal (act) prohibits.

The Iraqi A woman who apostates (and this is a Haraam action) becomes Haraam for her then argued: husband. [The Iraqi is trying to argue against the rule, ‘Haraam does not make Haraam, that which is Halaal’, and brings the example of the apostate woman so as to prove that, ‘Haraam (apostasy) makes Haraam (i.e. marriage to an apostate woman), that which is Halaal’ (i.e. marriage with the same woman while she was a believer)] Imam Yes (upon this man), and upon all the creation (i.e. all Muslims)…(*4) Shafa’ee said refuting: The Iraqi: We have, thus, found a Haraam (act) which makes something Halaal (i.e. marriage) to be Haraam. Imam Shafa’ee:

As far as the issue of our disagreement is concerned with respect to women, this is not the case. [i.e. the example of an apostate woman is not relevant to the case under discussion]

What further strengthens the view that Hurmat al-Masaaharah is not established due to adultery is that the rulings which Allah has prescribed pertaining to nikah are not applicable for zina, like iddah (waiting period), mourning (for widows), inheritance, (attribution of) lineage, the obligation of maintenance, khula, divorce, prohibition of marrying more than four women, the obligation of justice and equality between the women, the ruling of revoking divorce, the ruling of being Halaal for the former husband, etc. Moreover, the zaniya (adulteress) does not have a mahr (dowry) and such type of payment is looked down upon by the people, for this is akin to prostitution. Thus, since all these rulings are not established as a result of zina, then how can Hurmat al-Masaaharah singly be established through zina? Footnotes: *4: This is similar to the futile argument brought up by a Bareliwi Maulana, Yasin Ahktar Misbahi, who said, ‘Just as if a drop of alcohol or urine is dropped into a glass of water, whether accidentally or deliberately, the water is rendered impure’, he writes, so too, ‘if a woman has sex with her father-in-law, even if through rape, she can no longer remain the lawfully wedded wife of her husband.’ The response to this is just like how Imam Shafa’ee refuted the Iraqi - the impure water will be Haraam for all the Muslims and not just for specific individuals. The comparison is thus, futile and void.

Understanding the Deobandi Intransigence in the Matter Understanding the Deobandi Intransigence in the Matter The statements of scholars, from the Salaf, show ample textual and logical proofs in favor of the view that Hurmat al-Masaaharah is not established by adultery, and this is the majority

view and the one that is most appropriate. In addition to this, in the said case, an alleged rape is involved which warrants a ruling that is compassionate towards the victim and lessens her troubles. Rather, if there is a situation where preference should be given towards lenience, this would be such a case as it involves the victim and her children. In light of this, one fails to understand the Deobandi insistence on the fatawa, which is based upon a minority view, and given in the said circumstances results in more unnecessary hardships. One also fails to understand the strong-worded statements in support of the fatawa regarding a matter of Ijtihad or opinion, which is not unanimously accepted by the scholars. Milli Gazette comments, ‘Discussions with top ulama of Deoband revealed that they are not ready to re-assess their position even by an inch. Maulana Usman, vice principal of the Darul-Uloom Deoband, said, ‘we do not issue fatawas, we are only copiers of [old] fatawas.’ He brushed aside the possibility of Ijtihad saying that conditions today are worse than those found when the doors of Ijtihad were closed.’ To comprehend this intransigence, one has to look at the historical backdrop into the way the Deobandis interpret the texts of Islam and how they deal with issues of Ijtihad and differences? To give a brief idea, the Deobandi fatawa is based upon the Hanafi Madhhab, and the strong-worded statements in support of the fatawa are founded on the assumption that every opinion of the Hanafi Madhhab is binding upon the common Hanafis, just as the clear rulings of the Qur’aan and Sunnah are binding upon them. Just as a person has no choice in matters which are clearly mentioned in the texts, one has no choice but to accept the position of his Madhhab, unquestionably and without looking at the evidence behind it. This is known as Taqleed (blind-following). These assumptions that restrict a person to the opinions of a specific school of thought are definitely wrong, especially when they are enforced as a general rule for the scholars, the common people and the illiterate ignorant alike. We shall explain this by highlighting the following important concepts: 1. What are the basic texts of the religion, and how rulings are derived from them? 2. When does a difference of opinion occur amongst the scholars and what kinds of differences are acceptable? 3. If a scholar finds that the opinion he follows is weak or incorrect, should he remain upon it or change his view? In other words, is Taqleed acceptable for the scholars? 4. Is the common person bound to all the opinions of a particular Madhhab (a school of thought), or can he follow the opinion of another Madhhab/scholar if the proofs of the other Madhhab/scholar appear stronger to him? Does the common person even have the ability to refer to the proofs of the scholars or is Taqleed his only option? If these fundamental questions are clarified, one will see this entire saga in a different perspective, and will realize the unnecessary division and troubles caused by the callers to Taqleed.

The Sources of the Religion, Ijtihad, Ikhtilaf and Discussions on Taqleed The Sources of the Religion, Ijtihad and Ikhtilaf The two main sources of Islam; the Qur’aan and the Sunnah, either give direct injunctions

or provide general guidelines without going into specifics. That which is explicitly and unequivocally mentioned in the Qur’aan and the Sunnah (i.e. the Islamic Texts) is taken as the final word that none can dispute with, and this covers the majority of the rulings that the Muslims require in their daily lives. The Sahabah understood these texts directly from the Prophet (sallallahu alahi wa-sallam), and therefore, their opinions and tafaseer (interpretation of Qur’aanic verses) are necessarily referred to in understanding the texts; and likewise, are the views and commentaries of their successors (the Taba’een) because they were a generation uninfluenced by deviations and false ideologies that effected the later generations. When a certain issue is not directly mentioned in the text or in the agreements (Ijma) of the first generations of Islam; qualified scholars expand efforts to derive a ruling based on the general texts related to the matter - this process is called Ijtihad(*5). Ijtihad is an outcome of human efforts and is never perfect or flawless like the revealed texts. The door of Ijtihad will always remain open as new situations or developments require guidance related to the religion. If the scholars agree on an Ijtihad by consensus, it is raised in status and is called an Ijma (consensus). If an Ijma has been attained by the previous generations, then none from the later generations must dispute with it, and even if someone from a later era differs with this Ijma, his differing will be rejected. The most valid Ijma are those that were established during the era of the Sahabah, because in their time, the most knowledgeable among the Sahabah were close to each other. However, as the Muslim nation grew and the people of knowledge spread far and wide, it became more and more difficult for the Ijma to be established. Footnotes: *5: There are conditions attached to making Ijtihad. Not every individual has the right to issue fatawas and make pronouncements on matters, unless he has knowledge and is qualified. He has to be able to know the daleel (proof); the wording and apparent meaning of the texts; what is saheeh (sound) and what is da’eef (weak); al-nasikh wal-mansookh (what abrogates what); wording and interpretation of texts; what is specific in application and what is general; what is stated in brief and what is mentioned in detail. This needs lengthy experience and practice, knowledge of the various branches of Fiqh and where to look for information; knowledge of the opinions of the ulama and fuqaha, and memorization or knowledge of the texts. Undoubtedly, issuing fatawas without being qualified to do so is a grave sin, and means that one is speaking without knowledge. Allah has warned us against that, when He said, ‘And say not concerning that which your tongues put forth falsely, ‘This is lawful and this is forbidden,’ so as to invent lies against Allah. Verily, those who invent lies against Allah will never prosper.’ [Soorah an-Nahl (16): 116] [See, al-Lu’lu’ al-Makeen min Fatawa al-Shaikh ibn Jibreen]

Dealing with Issues of Ikhtilaaf When on a particular issue, there is no consensus among the scholars, then, it is an issue of Ikhtilaf or difference of opinion. These differences could occur due to variation of understanding, availability or unavailability of proofs, or mistake on the part of some scholars. This is why schools of thought differ greatly amongst each other on some issues of Ijtihad. Ijtihadi rulings that are based upon mistakes or lack of evidence or founded upon weak

proofs should be rejected. The fact that an Ijtihad has been made, does not necessarily mean that acting upon it is allowed, regardless of its accuracy. Imam Ibnul-Qayyim said, ‘Their view that in matters of dispute no views may be denounced is not correct. The criticism is directed either at the opinion and fatawa, or at the action. In the first case, if the opinion goes against Sunnah or a well-known Ijma, it must be denounced unanimously… The correct view is that of the Imams, which is that there is room for Ijtihad in cases where there is no clear evidence, which we should follow, such as a saheeh hadeeth, which does not conflict with other evidence of the same caliber. There are many issues concerning which the earlier and later generations differed, but in many cases, we have reached a point of certainty as to which of the two views is correct.’ [I’laam al-Muwaqqi’een (vol. 3/288)] This is not to say, that there could not be instances of genuine differences, on which the scholars agree to disagree - but these are exceptions and not the rule.(*6) The authority of an Ijtihad depends upon the strength of the evidence that it is based upon, because the fundamental reference point in all cases is the Qur’aan and the Sunnah. ‘When there is correct evidence it must be referred to and followed; it is not right to follow the opposite view with the excuse that there is difference of opinion on the matter. If the saheeh Sunnah, which has been reported via a sound chain from the Prophet (sallallahu alahi wa-sallam) is rejected because there is someone who says something different concerning this matter, this implies that a person thinks that the words and commands of the Prophet (sallallahu alahi wa-sallam) do not carry any weight unless people unanimously agree with it, and the fact that someone disagrees with it, no matter who he is, is taken as a reason to take away this authority [of the Sunnah] and leave the matter wide open (to dispute). This is a dangerous path, and the one who follows it needs to review his faith. It is essential to pay attention to teaching people to submit to Allah and to respect the texts of the Sharee’ah, and to take their religion seriously, and to avoid easy options and mistakes made by the scholars.’ [Muhammad ibn Abd-Allah al-Duwaysh, Al-Bayaan magazine, issue #153, p. 28] In contrast to this concept is the Deobandi view of Taqleed that restricts a person to the Ijtihadi opinions of one particular school of thought without looking into the evidence that validates the opinion. Adherence to these opinions is necessary even if they appear to oppose the Qur’aan and the Sunnah, or even if the other Madhhabs disagree with it. For the Muqallid (one, who makes Taqleed), the statement of his Imam is considered proof in itself. He is to follow unquestionably the Madhhab’s position just as he would unquestionably follow the Book and the Sunnah, to the extent that the Deobandis say, ‘(Belief in)… Taqleed is essential for the protection of Eeman. Without Taqleed, one cannot obtain a true understanding of Eeman and Islam.’ [Kitabul-Imaan, (Eng. Trans.), P.72] Footnotes: *6: Ibnul-Qayyim says in I’laam al-Muwaqqi’een (1/21), ‘The third principle of Ahmad’s school of thought is, ‘If the Companions disagree on an issue, we should select what is closer to the Qur’aan and the Sunnah. We may not neglect their sayings. If we cannot give preference to one of their sayings by way of the Qur’aan or the Sunnah, we declare, ‘It is a matter of disagreement and we do not know which one is the right opinion.

Taqleed Defined Taqleed in Theory Taqleed is defined in Hanafi Usool books in the following words;

‘To follow the statements of an individual whose statement is not from the four proofs (Hujjah) of the Sharee’ah and the statement is without evidence (Daleel). To refer to the (Hadeeth of) Allah’s Messenger (sallallahu alahi wa-sallam) and the Ijma is not from Taqleed because these two are from the four proofs (Hujjah) of the Sharee’ah (Qur’aan, Sunnah, Ijma and Qiyaas). Likewise, a common man’s following (the fatawa of) a Mufti and the Qadhi's (judge’s) basing his judgment on the testimonies of witnesses is also not Taqleed, for, even though, these are not from the (four) Hujjah of the Sharee’ah, following them is proved from the texts of the Sharee’ah and the Qur’aan and the Sunnah legitimize following them.’ [Taqreer wa-Tahbeer, pg. 340] (*7) ‘Taqreer wa-Tahbeer’ is the sharah (explanation) of, ‘Tahreer’ of Allamah Ibn al-Hummam the Hanafi scholar and author of Fath al-Qadeer (9 volumes) which is the explanation of alHidayah. As the definition of Taqleed shows, excluded from Taqleed are; (1) Referring to the scholars for a ruling, (2) Referring to the books of scholars like their Tafaseer (pl. of Tafseer) and Hadeeth collections and (3) to accept the Ijtihadi positions of the scholars based on the evidence they provide. Footnotes: *7: This definition of Taqleed is approved and accepted by the contemporary Deobandis, as Taqi Usmani says, ‘Taqleed is to follow the opinions of a person, whose opinion is not a proof in Islamic law – without asking for his proof (i.e. the Muqallid does not ask the proof from the person whose opinion he follows).’ Quoted from, ‘The Legal status of following a Madhhab’ by Moulana Muhammad Taqi Usmani. The definition is attributed to Ibn Hummam and Ibn Nujaim.

---------------------------------------------------------------------The Foundation of Taqleed The concept of Taqleed is based on the assumption that it is not possible that an Imam would have given his opinion on a particular issue, without him having evidences for it. In general, this assumption is acceptable but it does not rule out the possibility of error or the fact that certain ahadeeth did not reach a particular Imam who gave an opinion in the absence of relevant proofs. If errors of this nature occur, excuses are made for the scholar who errs but the mistakes are not to be followed. In this regard, Shaikhul-Islam Ibn Taymiyyah (rahimahullah) says, ‘It must be known that there is not one scholar, who is accepted widely and willfully by the Ummah, that purposely intends to oppose the Messenger of Allah (sallallahu alahi wasallam) in any aspect of his Sunnah, whether small or large. For indeed, they all agree on the obligation of following the Messenger (sallallahu alahi wa-sallam) upon a firm and certain understanding. They also agree that one can accept or reject the statement of any individual from mankind, except that of the Messenger of Allah (sallallahu alahi wa-sallam). Therefore, when it is found that an opinion, held by one of them, contradicts an authentic hadeeth, there is no doubt that excuses must be made for him, in explanation to his abandoning of it. These excuses can be divided into three categories; 1. The lack of his believing that the Prophet (sallallahu alahi wa-sallam) said it,

2. The lack of his believing that particular issue was affected by that statement, 3. His belief that the ruling was abrogated.’ [Raful-Malaam anil-A'immatil-A'laam (Removing the Harms from the Noble Imams)] The immediate students of the great Imams did not dispute with this possibility of the Imam falling into mistakes. This is the reason why, for example, the students of Imam Abu Haneefah differed with their teacher and took positions contradictory to that of the Imam. (*8) The intellectual stagnation seen in the Madhhabs today does not have precedence from the era of the Imams or their students.(*9) Having established that Taqleed is not about adherence to the proofs of Islam but to Ijtihadi opinions that are not infallible, one can see the gross exaggeration in the Deobandis statement, ‘Taqleed is essential for the protection of Eeman. Without Taqleed, one cannot obtain a true understanding of Eeman and Islam.’ It was mentioned by al-Kamal bin al-Humam in his book al-Tahreer wa al-Taqreer that it is not obligatory to follow a certain school of law (madhhab) because there is no evidence for doing so. Obligation is only set by Allah and His Messenger (sallallahu alahi wa-sallam). Footnotes: *8: Imams Abu Yusuf and Muhammad ibn al-Hassan differed from their teacher Imam Abu Haneefah in about one third of the rulings of the Madhaahib (pl. of madhhab). [The Evolution of Fiqh by Dr. Bilal Philips. Quoted from al-Hashiyah (vol.1, p.62)] *9: Al-Buwayti, al-Muzani, an-Nawawi and Ibn Hajr were followers of Imam Shafa’ee, but they were also mujtahids in their own right, and differed with their Imam when they had evidence. Similarly, Ibn Abd al-Barr was a Maliki, but he differed with Imam Malik if the correct view was held by someone else. The same may be said of the Hanafi Imams such as Abu Yosuf and Muhammad ash-Shaybani, and the Hanbali Imams such as Ibn Qudamah, Ibn Muflih and others.

Taqleed in Practical Application Taqleed in Practical Application We have mentioned the disagreement of the students of Imam Abu Haneefah with their teacher. So when such a situation arises, What do the Deobandis do after they have committed themselves to the Taqleed of an individual Imam? They follow the opinions of Imam Abu Haneefah on some matters and follow the opinions of the later Hanafis on other matters. Who decides which opinion is better and more appropriate? This was done by the scholars of the Hanafi Madhhab who emerged after the fourth century of Islam (two centuries after the death of Imam Abu Haneefah). They decided on which opinions were to be favored (given tarjeeh) over others, resulting in the selection of the ‘official position’ or ruling of the Madhhab. Does the decision-making on the most valid opinion end at this, or is there room for still differing with the Madhhab's position? The Deobandis have been forced in the past and recent times to differ with some of

the position of their Madhhab because of the much undesirable effect it has caused them. Here are two examples: (1) Regulation regarding the missing husband: The ruling of the Hanafee Madhhab is as Moulana Ashraf Ali Thanvi says in Bahishti Zewar (part.10, p.244), ‘If a woman’s husband is absconding and it is not known whether he is dead or alive, then the woman cannot marry another person immediately, but she should wait for him with the hope that he might come back. When she has waited so long that the age of the husband is presumed to be ninety years, now it will be decreed that he might have died by now, so if the woman is still young and also wants to marry someone else, she can do so after observing Iddat, provided the absconding man has been declared as dead by a religious judge.’ Mentioned in Malfoozat Hakimul-Ummat (A Collection of the Sayings of Moulana Ashraf Ali Thanvi) vol.8, p.37, ‘Once someone came to Ashraf Ali Thanvi and said, ‘The issue of Mafqood al-Khabr (missing husband) next to Imam Sahib (i.e., Imam Abu Haneefah) is a big problem (difficult).’ He (Moulana Ashraf Ali Thanvi) retorted saying, ‘Yes, there is a big problem. And the issue of warfare mentioned in the Qur’aan has greater difficulty. So, remove this too from the Qur’aan.’ Despite the strong stance of the previous Deobandis, the contemporary Deobandis follow the Madhhab of Imam Malik and Imam Ahmad Ibn Hambal which prescribes a waiting period of four years. As Mufti Abdur-Rahim Lajpuri says, in Fatawa Rahimiyah, ‘…and nowadays Hanafee jurists also… issue fatawa as per Imam Malik’s Madhhab for a period of four years.’ [Fatawa Rahimiyah, part.2, p.112 (Regulation regarding the missing husband)] Comment: According to Moulana Ashraf Alee Thanwi, abandoning an Ijtihadi view, which is an opinion of the Hanafi jurists, is akin to abandoning something which is directly referred to in the Qur'aan. This is exactly the same attitude one now sees in the Deobandi support for the fatawa on the Imrana issue. The fatawa is based on an incorrect interpretation of the Qur'aanic verse which does not relate to the case of Imrana in the first place, and yet, they insist that their decision is the decision of the Qur'aan which none can disagree with. (2) Using Zakaat money for religious Madrasas: According to the Hanafi Madhhab, the money from Zakaat cannot be paid to finance religious Madrasas (schools). This stems from the prohibition in the Hanafi Madhhab for charging money for teaching the Qur’aan. These rulings have caused a big problem for the Hanafi-Deobandis in running their Madrasas. Whilst they cannot abandon the Hanafi Madhhab on these issues, they have formulated ways by which they can go around these restrictions. They give huge sums of money as Zakaat to the poverty-stricken and Zakaat-deserving students of their Madrasas, who in turn are expected to give this money back to the Madrasa as charity (Sadaqah). Therefore, the restriction of their Madhhab in not using Zakaat money for these Madrasas is upheld, whilst money collected in the form of Zakaat is used indirectly to run these Madrasas. Mufti Abdul Rahim Lajpuri has been asked about the permissibility of this method and he has ruled it to be permissible provided the poor students do not do it out of compulsion. This is mentioned in Fatawa Rahimiyah (vol. 2, fatawa no. 4, p. 7)]

In conclusion In conclusion: We have thus established: 1. When a person aligns himself with the Deobandi and Hanafi school of thought, he is not binding himself to the jurisdiction and opinions formulated at the time of the Imams. Rather, he has limited himself to the understanding and conclusions of the Deobandi scholars of the later age. Taqleed of the Hanafi madhhab is actually a call to the Taqleed of the Deobandi elders. 2. Despite being committed to Taqleed, the Deobandis do differ with their Imam, taking the opinions of the later Hanafi scholars. In essence, therefore, they too are not averse to the notion that an Imam’s view could be erroneous. 3. There is precedence from the Deobandis that there is room for abandoning the ruling of one’s Madhhab and following the ruling of the other.

Is Taqleed acceptable for the Scholars? Is Taqleed acceptable for the Scholars? From the text of Fatawa al-Lajnah, 5/41 and 5/28, ‘Whoever is qualified to derive rulings from the Qur’aan and the Sunnah, and has strong knowledge in that regard, even if that is with the help of the legacy of Fiqh that we have inherited from earlier scholars of Islam, has the right to do that, so he can act upon it himself and explain it in disputes and issue fatawas to those who consult him. It is not right for him to follow blindly (make Taqleed) when he believes that the truth lies elsewhere. Rather, he should follow that which he believes is the truth. It is permissible for him to follow (the scholars) in matters in which he is unable to come to a conclusion based on the Qur’aan and Sunnah and he needs guidelines concerning a particular issue. Whoever says that it is obligatory for the learned people to follow the scholars blindly in all cases is making a mistake and being inflexible, and is thinking that these learned people are inadequate, and he is restricting something that is broad in scope. Whoever says that we should limit following to the four madhhabs is also mistaken, because he is restricting something that is broad in scope with no evidence for doing so.’ Imam Ibnul-Qayyim (rahimahullah) explains how knowledge and Taqleed are two opposites. He said with regards to giving rulings based on Taqleed, ‘The first view is that it is not permissible to give a fatawa based on Taqleed, because that (i.e. Taqleed) is not knowledge, and giving a fatawa without knowledge is Haraam. There is no dispute among people that Taqleed is not the same as knowledge and that the muqallid (one who imitates or repeats the views of others) cannot be given the name of ‘aalim (scholar). This is the view of most of our companions and the view of the majority of Shafa’ees. The second view is that it is permissible with regard to himself; he may follow the view of one of the scholars if the fatawa is with regard to himself only. But it is not permissible for him to repeat the views of a scholar in giving a fatawa to someone else. This is the view of Ibn Battah and others among our companions. Al-Qadhi said, ‘Ibn Battah mentioned in his letters to al-Barmaki, ‘it is not permitted for a person to issue a fatawa based on what he had heard from a scholar who issued a fatawa. Rather, it is permissible for him to follow that scholar’s view with regard to himself, but repeating his views and issuing a fatawa to

someone else, this is not permitted.’ The third view is that this is permitted when necessary and when there is no scholar who is qualified to make Ijtihad. This is the most correct view and this is our guideline. Al-Qadi said, ‘Abu Hafs said in his comments, ‘I heard Abu Ali al-Hasan Ibn Abd-Allah al-Najjad say, ‘I heard Abul-Husayn Ibn Bashraan say, ‘what I may criticize a man for is learning five issues of Fiqh from Ahmad then sitting by a pillar in the mosque (i.e., setting himself up as a scholar) and issuing fatawas based on that.’ [end quote] [I’laam al-Muwaqqi’een (1/37, 38)] The explanation of Imam Ibnul-Qayyim which he bases on the views of great scholars of the past proves that the views of the Deobandis, as expressed by the vice-principal of the Darul-Uloom Deoband, with regards to giving fatawa based on Taqleed is greatly flawed and ‘absolute Taqleed’ is not an option for the one who has the ability to look into the proofs of a matter. Maulana Usman, vice-principal of the Darul-Uloom Deoband, said, ‘we do not issue fatawas, we are only copiers of [old] fatawas.’ He brushed aside the possibility of Ijtihad saying that conditions today are worse than those found when the doors of Ijtihad were closed.’ [From Milli Gazette, ‘Imrana case: Rape by Media’ by Zafarul-Islam Khan]

How do the Common People take their Rulings? How do the Common People take their Rulings? The Qur’aan and the Sunnah are the basic sources of guidance for all, but when a common person requires a specific ruling, he is supposed to refer to the trustworthy scholars instead of inventing his own interpretations. This is what the Qur’aan commands, ‘So ask of those who know the Scripture, if you know not.’ [Soorah an-Nahl (16): 43-44] This referring to the scholars is by asking them to respond in light of the Qur'aan and the Sunnah or by reading their books, Tafseer, etc. A common person is not obliged to restrict himself to the rulings of a particular scholar and must refer to scholars known for their knowledge, virtue, piety and righteousness; those whose opinions are not marred by prejudice towards a particular Madhhab. As has been established earlier from the definition of Taqleed, quoted from, ‘Taqreer wa-Tahbeer,’ such referring to scholars for rulings is not Taqleed. In this regard, Shaikhul-Islam Ibn Taymiyyah (rahimahullah) said, ‘No one has to blindly follow any particular man in all that he enjoins or forbids or recommends, apart from the Messenger of Allah (sallallahu alahi wa-sallam). The Muslims should always refer their questions to the Muslim scholars, following this one sometimes and the other sometimes. If the follower decides to follow the view of an Imam with regard to a particular matter, which he thinks is better for his religious commitment or is more correct etc, that is permissible according to the majority of Muslim scholars, and neither Abu Haneefah, Malik, Shafa’ee or Ahmad said that this was forbidden.’ [Majmoo al-Fatawa (23/382)] It is acceptable for a Muslim to follow one of the four well-known madhhabs, on the condition that he understands that the truth in any given issue may lie with another madhhab, in which case he must ignore his own madhhab’s opinion and follow the truth. The Muslim’s aim is to follow the truth that is in accordance with the Qur’aan and Sunnah. The madhhabs of Fiqh are only a means of reaching rules based on the Qur’aan and the

Sunnah, they are not Qur’aan and Sunnah themselves. Limiting oneself to a particular Madhhab in every issue is undesirable because a specific ruling in a Madhhab may be incorrect. This is apparent from the fact that at times the ruling of one madhhab is completely contradictory to that of the other Madhhab. Those who claim that even when complete contradictions exist, both opinions are considered to be the truth and are acceptable to be followed are mistaken as will be clarified from the following quote from Jamee Bayaan al-Ilm; Imam Ibn Abdul Barr says, ‘Imam Muzani said, ‘There is the one, who allows differing and thinks that if two scholars make Ijtihad on a problem and one says, ‘Halaal’, while the other says, 'Haraam', then both have arrived at the truth with their Ijtihad! It can be said to such a person, ‘Is this view of yours based on the sources or on Qiyaas (analogy)?’ If he says, ‘On the sources’, it can be said, ‘How can it be based on the sources, when the Qur'aan negates differing?’ And if he says, ‘On analogy,’ it can be said, ‘How can the sources negate differing, and it be allowed for you to reason by analogy that differing is allowed?! This is unacceptable to anyone intelligent, let alone to a man of learning.’ [Jamee Bayaan al-Ilm (2/81-2)] ‘If both the conflicting views could be right, the Salaf would not have corrected each other's Ijtihad, judgments and verdicts. Simple reasoning forbids that something and its opposite can both be correct; as the fine saying goes, ‘To prove two opposites simultaneously is the most hideous absurdity.’ [Jamee Bayan al-Ilm (2/88). Quoted from Sifat Salaat an-Nabee by Shaikh al-Albanee] ------------------------------------------------------------------------------At this juncture, a common person does his best to seek knowledge and follow the truth to the best of his ability, relying upon Allah and doing his part in knowing the truth; if he still does not truly understand or is unable to make a decision, he is free of blame – he follows the truth that reaches him in accordance with the verse, ‘So keep your duty to Allah and fear Him as much as you can.’ [Soorah at-Taghabun (64): 16] A person in blameworthy, if he shows prejudice and arrogance when he is shown clear verses and ahadeeth. It is also blameworthy to deliberately remain ignorant of Islamic teachings, basing one’s religion on blind-trust. Rather, a common person should seek knowledge, seek the proof behind the rulings and be an ‘informed believer’ rather than a complete blind-follower. Moulana Muhammed Yusuf Ludhianwee, a Deobandi scholar disagrees with this, and says, ‘…Zaid goes to a specialist and this specialist prescribes a certain medicine for him. Now, if Zaid begins to question the authority and prescription of the specialist. This action of Zaid would be regarded as most unethical and against sound reason.’ [‘Show us the straight path’ (English trans. of the Urdu article, ‘Ikhtilaf-e-Ummat aur Siraat-e- Mustaqeem) by Moulana Yusuf Ludhianwi. Published by Madrasa Arabia Islamia, South Africa, p.16.] In response to this logic, we say that the common person’s referring to the scholars is like ‘the informed consumer,’ who may not understand all the intricacies of medicine, but does his best to determine which doctor is most suitable to treat his ailment. He gives preference to the doctor who listens carefully to the patient and explains his diagnosis – over the doctor, whose treatment is shrouded by secrecy. He prefers the doctor that treats by

mainstream medicine than to trust an ideologue, who considers some substances as a panacea for all diseases. Finally, and most-importantly, a patient resorts to taking a second opinion, which will allow him to know those aspects that he may not know from the first doctor. Even though, taking these precautions will not make someone a medical doctor himself, yet, it is obvious which patient is less likely to be duped or come to a wrong conclusion.

Does the common person even have the ability to refer to the proofs of the scholars or is Taqleed his only option? Does the common person even have the ability to refer to the proofs of the scholars or is Taqleed his only option? Common people are not all the same when it comes to comprehending the meanings of the texts of the Qur’aan and the Sunnah. The assumption that a common person has absolutely no ability to distinguish between the strength of arguments in two opposing positions of scholars is incorrect. In the words of Shaikh al-Albanee (rahimahullah), ‘Scholars do not disagree concerning the obligation upon the common people to imitate their scholars. They are the ones mentioned in the verse, ‘And ask the knowledgeable about it.’ [(25): 59] Scholars agree that the blind must follow others, whom he trusts, if he seeks to know the direction of the Qiblah (direction of prayer) when he cannot find it by himself. Likewise, those who are ignorant and are not capable of understanding the religion, have to follow their scholars. Also, the scholars do not disagree on the issue of not allowing the commoner to issue a fatawa. This is because commoners do not understand the meanings of evidences that detail permissible or impermissible acts nor do they know knowledge in general.’ ‘However, I believe that to generalize about commoners, saying that they all must perform Taqleed, is invalid. Taqleed is following sayings of others without evidence to prove these sayings. Many smart commoners can clearly understand evidence if it is presented to them. Who can deny that a commoner can understand the evidence contained in the Hadeeth, ‘Tayammum (performing dry ablution with sand when water is scarce) is one strike (on the sand) for the face and hands!’ Even those people, who are of minor comprehension, can understand this Hadeeth. Therefore, the truth is that we must say that Taqleed is allowed for whoever cannot search for or understand the evidence. Allah does not burden any soul but with what it can bear. Ibnul-Qayyim said that which is in agreement with this rule. Even scholars are forced to indulge in Taqleed sometimes, when a scholar cannot find a text from Allah or His Messenger, but only sayings of more knowledgeable scholars. Therefore, this scholar will be forced to refer to Taqleed. Imam Shafa’ee referred to Taqleed in some matters. This is why Ibnul-Qayyim said, ‘And this is the way of people of knowledge. It is also an obligation. Taqleed is permitted for whoever has no other choice. As for those who refer to Taqleed and shun the Qur’aan, the Sunnah, sayings of the companions and searching for evidence, they are like the one, who prefers to eat the meat of a dead animal (not sacrificed according to Islamic Law) to a duly sacrificed animal.(*10) Correctly, one must not accept sayings of anyone without proof. Followers of men, made Taqleed, which is the exception, their first priority!’ [Al-Hadeeth Hujjah bi-Nafsihi fil-Aqeedah wal-Ahkaam, by Muhammad Nasiruddeen al-Albanee] A good example of whether a common person can distinguish between two different Ijtihadi positions of the scholars is this case in hand, for which the common person can refer to I’laam al-Muwaqqi’een by Ibnul-Qayyim, who explained the different positions on the matter and has shown that one position is far stronger than the other. The Deobandi view is based on drawing conclusions from marriage (nikah) for adultery (zina), while the textual and

logical proofs that Ibnul-Qayyim has brought in refutation of this are clear and easy to understand. Footnotes: *10: A person in dire-necessity who could die out of hunger is permitted to eat that which is normally considered impermissible for consumption, in order to save himself. The ruling on Taqleed is just like this that it is permitted when one has no other option. However, those who make Taqleed the rule, rather than an exception are like those unreasonable ones who give preference to consuming Haraam while having ample of Halaal to turn to. They took the exception as the rule.

Will abandoning absolute Taqleed lead to Following of Desires? Will abandoning absolute Taqleed lead to Following of Desires? The most widely cited argument in favor of Taqleed is that if the people were left free to choose from the opinions of various scholars they would seek conveniences in every matter of the Deen, which is just like following one’s desires. This is definitely blameworthy, but would a person also be blameworthy if he chooses an opinion due to stronger proofs? Surely not, because the actual adherence is to the Qur’aan and the Sunnah - and the Ijtihad, which is based on stronger proofs is more worthy to be followed. The choice is between an Ijtihad based on an opinion and opinion based on an authentic hadeeth. In this case, leaving acting upon the hadeeth because it does not confirm with the opinion of the Madhhab is highly blameworthy. A pro-Deobandi consortium from South Africa has published an article giving examples of how abandoning of Taqleed leads to following of desires, as quoted below: From, ‘The Sharee’ah Role of Taqleed,’ ‘In the time of the Sahabah, which was the best of times, there was no ulterior motive regarding religious questions. A question was asked to know the correct method and to practice on it. It was not asked for one's convenience as in later times. For example, a person with wudhu touches his wife, which according to the Shafa’ee Madhhab nullifies wudhu. Now when he is told to make wudhu, he replies, ‘I make Taqleed of Imam Abu Hanifa and I am not a breaker of Wudhu according to his madhhab, therefore my Salaat (prayer) will be valid.’ Now this person vomits, which according to Hanafi madhhab, breaks Wudhu. He is now told to make Wudhu. He replies, ‘I make Taqleed of Imam Shafa’ee; it is not a nullifier of Wudhu, therefore, my Salaat is valid.’ If this person (who on one hand, touches his spouse and on the other hand, vomits) has to perform his Salaat with such a Wudhu, it would neither be correct according to Imam Abu Haneefah nor according to Imam Shafa’ee. In terminology, this is known as Talfiq, which is agreed upon unanimously to be void and not permitted. This is not Taqleed but following one's passions and desires for one's personal convenience which lead one astray. The necessity of following a Madhhab, Imam or Mujtahid is that one would not fall into the temptations of following one's own desires. The Holy Qur’aan states, ‘And do not follow desires. You would be led astray from the path of Allah.’ Thus, the need of following only one Imam.’ In response to this, we say that following a particular Madhhab will never curb the following of desires because the person, who wants to follow his desires, will do so even if he was forbidden. For example, a person following the Hanafi Madhhab commits adultery even though his Madhhab forbids him. The discussion is about the one, who wishes to follow his Deen and finds his madhhab at odds with authentic ahadeeth or with a stronger Ijtihadi

position. Should he follow the truth that is apparent to him or should be blindly stick to his madhhab? Shaikh Saleh bin Fawzan al-Fawzan (hafidahullah) explains this in the following words, ‘…So leaving one madhhab for another madhhab in order to follow an evidence is a good act, rather it is obligatory because following the evidence is obligatory. However, taking from one madhhab at one time and another madhhab at others seeking to follow one’s desires and concession is not allowed – meaning, he takes what pleases his desires from the sayings of the people of knowledge, even though it was against the evidence, and he leaves what displeases his desires, even though the proof verifies it – This is following desires and protection is sought from Allah (alone). So, shifting from one madhhab to another madhhab with the aim of following one’s desires, seeking the easiest (stance), and concession is not allowed. As for shifting from one madhhab to another madhhab in order to follow the Daleel (evidence), and escaping from the baseless or incorrect opinion, then such is encouraged and required from the Muslim, and Allah knows best…’ [Muntaqa min Fatawa Shaikh Saleh ibn Fawzan al-Fawzan (vol.5 / Fatawa no. 484)]

Between Claustrophobic Attitude of the Blind-Followers and the Vastness of the way of the Salaf Between Claustrophobic Attitude of the Blind-Followers and the Vastness of the way of the Salaf The prejudicial attitude of the Deobandis extends to all issues of Ijtihad and to every aspect where the madhaahib (plural of madhhab) differ amongst themselves. The bigotry and intolerance of the Deobandis can be seen in the following fatawa by Mufti Lajpuri, which shows that if a Hanafi follows even a minor action of the Shafa’ees in his prayer, his prayer would be invalidated… Question: I belong to the Hanafi Madhhab and teach in a school belonging to the Shafa’ee Madhhab. Sometimes, I lead the loud-toned prayer; so will there be any fault if after Soorah al-Fatiha in deference to my Shafa’ee followers in prayer, I pause so much that in that time they may quickly recite Soorah al-Fatiha and then begin the other Soorah? Answer: Such delay (in joining the Soorah to the Soorah al-Fatiha) for a Hanafi Imam is not proper; it is forbidden. Such prayer will be defective and will have to be said afresh; prostration for lapse will also not be sufficient, for in the case in question, delay has been caused deliberately. [Fatawa Rahimiyah, (Eng. Trans.) vol.1, p.125. (Kitabus-Salaat)] In contrast, one would find the teachings of those on the way of the Salaf to be forbearing and embracing when it comes to these matters. Shaikhul-Islam Ibn Taymiyyah (rahimahullah) mentioned the scholarly dispute and favored the view that one should follow the imam (who leads the prayer) so long as the matter is something that is subject to Ijtihad. He said in al-Fatawa al-Kubra (2/117), ‘They disputed regarding a case where the imam omits something that the person praying behind him thinks is obligatory, such as if he omits to recite the Basmalah, and the person praying behind him thinks that it is obligatory, or he touches his privates and does not do wudhu, and the person praying behind him thinks that wudhu is obligatory in that case, or he prays wearing tanned leather from an animal that died naturally, and the person praying behind him thinks that tanning does not render the animal skin pure, or he is treated with cupping and does not do wudhu after that, and the person praying behind him thinks that one should do wudhu after cupping – the definitive correct view is that the prayer of the

person who prays behind an imam is valid, even if the imam makes a mistake, because it is narrated in the Saheeh that the Prophet (sallallahu alahi wa-sallam) said, ‘They lead you in prayer and if they get it right, it is for you and for them, and if they make a mistake it is for you and against them.’ Similarly, if the person praying in congregation follows someone who recites qunoot in Fajr or Witr, he should recite qunoot with him, whether before or after bowing, and if he does not usually recite qunoot, then he should not recite qunoot with him. If the imam thinks that something is mustahabb but the people praying behind him do not think it is Mustahabb, and he omits it for the sake of harmony, he has done well. An example of that is Witr. There are three scholarly opinions concerning it: 1. That it can only be offered as three rak’ahs joined together, like Maghrib, as was the view of some of the people of Iraq; 2. That it can only be a single rak’ah offered separately from those that come before it, as was the view of some of the people of the Hijaaz; 3. That both are permissible, as appears to be the view of Shafa’ee, Ahmad and others, and this is the correct view. If these people are of the view that it should be separate from whatever comes before, and if the imam is of the view that it should be separate, but the people praying behind him favor the view that Witr should be like Maghrib, and he goes along with them in the interest of harmony, then he has done well, as the Prophet (sallallahu alahi wa-sallam) said to Aa’isha, ‘Were it not that your people are new in Islam, I would have knocked down the Ka’bah, made its door level with the ground, and I would have given it two doors, one through which the people could enter and another through which they could exit.’ But, he chose to forego that which he thought was better, so as not to upset the people.’ [End quote]

Vantage Point: The Deobandi Predicament Vantage Point: The Deobandi Predicament A highly undesirable consequence of the Deobandi stubbornness in the case of Imrana was that the people’s faith was unnecessarily put to trial. Because the people were either given the option to accept the Deobandi fatawa, which was claimed to be the decision of the Qur’aan and binding upon every Muslim to consent with, in order to preserve his Islam – or to dissent against his faith by refusing to accept the fatawa. Whereas, the situation was never about deciding between obedience and disobedience to the Qur’aan, nor a choice between faith and disbelief. Firstly, because the actual Islamic verdict based upon the genuine principles laid down by Allah in His Book and the Sunnah of Messenger (sallallahu alahi wa-sallam) did not entail any injustice upon the victim, which would incite any form of dislike or rebellion against Islam. Secondly, the issue was a matter of Ijtihad, which permits one to reject the weak and baseless opinion, in order to accept the opinion supported with stronger proofs from the Book and the Sunnah. The Deobandis, however, withheld this option from the people and imposed their stance upon them. This is because the Deobandis find it necessary for the preservation of their hold of influence that their fatawa be given the status of Sharee’ah and the common people adhere to it without question. This is why one sees the apparent rock-hard stances and the strong statements in support of the fatawa of the Deobandi mufti, otherwise, the Deobandis have shown remarkable flexibility when it came to the issue of using Zakaat money for their madrasas (as has been illustrated in the article).

Let there be no doubt that the Deobandis have always been guilty of excessive exaggerations when it come to exemplifying their scholars. To quote two examples, Maulana Ashraf Ali Thanvi, says, ‘According to me, a great proof of the truth of Islam is the presence of Maulana Anwar Shah Kashmiri in the Muslim Ummah. If there was any sort of crookedness or deficiency in Islam, then Maulana Anwar Shah would not have adopted it.’ [Akabir-e-Ulama-e-Deoband, p. 98] Moulana Rasheed Ahmad Gungohi used to say many times, ‘Listen carefully! Truth is only, what is uttered by the tongue of Rasheed Ahmad. And I swear that I am nothing, but that in this age, guidance and success is dependant upon my Ittiba (following).’ [Tazkirat arRasheed, vol.2, p.17 by Aashiq Ilaahi Merathi] In areas where the Deobandi Madrasa wields influence, the common folks are under the impression that they follow the Madhhab of the Imams, while in reality, they unwittingly follow the opinions and conclusions of the Deobandi elders. It would be interesting to mention that the Deobandis do not agree with the principle that when two Ijtihads are contradictory, the weaker Ijtihad may be dropped. Rather, their view is that every Ijtihad of the four madhaahib (pl. of madhhab) is true and worthy to be followed. This means that if the people of the Chhartawal village were Shafa’ees, there would be no controversy at all. The people of that village would have considered the woman raped by her father-in-law to be Halaal for her husband (as was the opinion of imam Shafa’ee), and yet, would not be guilty of leaving the Sharee’ah or disobedience to Qur'aanic injunctions. Rather, the Deobandis would consider them to be good Muslims who acted in accordance with the Sharee'ah and the Qur'aan. But since the people of that village were Hanafis, the opposite ruling applies to them. This illogicality is a result of the notion that every Ijtihad is the haqq (truth) and acceptable; and in the words of Imam Ibn AbdulBarr, ‘To prove two opposites simultaneously is the most hideous absurdity.’ [See the complete quote under, ‘How do the common people take their ruling?] With regards to the claim that lack of Taqleed leads to following of desires and seeking conveniences in the deen, we have explained that this concern is unfounded. Because the one who wishes to follow his desires, does so even after being bound by a Madhhab, while the one who is sincere about his religion may be forced to leave action upon certain Ahadeeth or upon a stronger Ijtihadi positions due to Taqleed. In truth, the matter is nothing more than maintaining unquestionable religious authority over the people for, if the matter of referring to the scholars is left open as it should be, the unjustifiable high influence of the Deobandis over certain sections of the people will be undermined. As for the Imrana case, tremendous public opposition to the fatawa has made it a major embarrassment for the Deobandis and has let to the people questioning their authority and inflexibility. Caught between the rock (concept of Taqleed) and a hard place (public opinion), the Deobandis have tried to wriggle their way out of an uncomfortable position by the help of some technicalities. The media reported, Adil Siddiqui (Media in-charge at the Darul-Uloom Deoband) as saying, ‘The fatawa came in response to a query made by a journalist seeking information to write his copy… The fatawa had nothing to do with the Imrana case, as no such request or clarification was sought by Imrana or anyone else on her behalf.’

So what if one of the direct parties involved with the case were to approach Darul-Uloom Deoband for a verdict? Would the verdict be any different? Certainly not - as the fatawa is based on a well-known position of the Deobandis on cases as this. Quoting Fatawa Rahimiyyah, ‘… (if) the woman indulges in adultery with her husband’s son, she will become unlawful forever for the husband but the marriage-bond will not break.’ [Fatawa-Rahimiyah (vol.2, Kitab at-Talaq, p.121) This fatawa was based on Durr-e-Mukhtaar and Shami, (vol.2. P.3867)] Furthermore, the Deobandi position in this matter is still harsher. According to them, Hurmat al-Masaaharah is not only established by adultery but by mere touching. From Bahishti Zewar by Moulana Ashraf Alee Thanwi, p.406 (Eng. Trans. Published by Urdu Book Depot, 2nd ed. 1974) ‘21. In the darkness of the night a man woke up to awaken his wife, but unwillingly he caught his daughter with a youthful passion (i.e. with desire), then his wife will become prohibited for him. There is no way of legitimizing it. It is necessary for him to divorce his wife.’ ‘22. If a man touched his wife’s step-mother with evil intention, then she becomes absolutely prohibited for her husband and there is no way of legitimizing it. The same applies to the step-mother if she does it with her step-son.’

So the Darul-Uloom’s distancing itself from the fatawa of its mufti is merely a political move, it does not in anyway mean that they have reconsidered their view on the matter. Milligazette, a New Delhi based newspaper has closely followed the events of the case and its editor had the following to say on the twists and turns of the Deobandi mufti who issued the fatawa. ‘… a Noida-based Urdu newspaper, Rashtriya Sahara, asked the Mufti in India’s premier Muslim seminary, Darul Uloom Deoband, to give his opinion. The mufti (Maulana Habibur Rahman), without ascertaining the facts of the case or going to the area or sending someone there to find out the truth, issued a fatawa on 16 Jumada al-Oula 1426 Hijri (25 June) saying that Imrana is now Haraam (forbidden) for her husband and should leave him. We obtained a copy of this fatawa and asked Mufti Habibur Rahman certain questions. He was unable to counter our argument that the Qur’aanic injunction [‘And marry not women whom your fathers married…’ (4): 22)] does not apply here. He gave us some references to support his view but when we read them, they did not seem to support the Mufti’s interpretation which is the opinion of some Hanafi fuqaha, who consider illegitimate sexual contact including rape also as a cause for prohibiting such marriages. We confronted the Mufti again. This time he referred us to another Maulana who, he said, was present in the meeting when the decision was taken. We told him, why we should go to someone else when he (Mufti Habibur Rahman) had signed the fatawa. Seemingly, he was not pleased with our argument and asked us to write down whatever ‘problems’ we had in mind. We did this promptly. He replied on 3 July repeating the same Hanafi stand which is based on interpretation instead of a clear textual support from the Qur’aan or Hadeeth. Discussions with top ulama of Deoband revealed that they are not ready to re-assess their position even by an inch. Maulana Usman, vice principal of the Darul-Uloom Deoband, said, ‘we do not issue fatawas, we are only copiers of [old] fatawas.’ He brushed aside the

possibility of Ijtihad saying that conditions today are worse than those found when the doors of Ijtihad were closed. …Just one day after our interaction on 29 June, the Mufti’s office announced on 1 July that the previous fatawa was not about Imrana, which is factually incorrect. While the name ‘Imrana’ is not mentioned in the question to which the fatawa was given, her village and district are mentioned. Moreover, the 3 July issue of Rashtriya Sahara Urdu newspaper carries an article by Mufti Habibur Rahman, which explicitly mentions the name of Imrana and pronounces the same opinion he earlier expressed in his fatawa.’ [Milli Gazette, ‘Imrana case: Rape by Media’ by Zafarul-Islam Khan] Bewildered by the public outrage, the Deobandis have resorted to ways that may be acceptable for political parties, but in Islam, lying and deception are considered serious flaws and behaviors incompatible with being Islamic scholars, teachers and guides. The greater concern is that if the Deobandis manage to wriggle out of this situation without any commitment to re-evaluate their position or at least an unprejudiced discussion, things will remain as they are. The next victim of rape by close-relatives may not have the privilege of having media frenzy on its side, and would be victimized by the Deobandi intransigence, who will give priority to self-preservation over compassion for the victim. They will continue to enforce their weak opinion in this matter and keep-up their call to blind-following. If this happens, whatever little good that could come of this sorry saga will be lost and all the bad press Islam has received as a result of the Deobandis will be in vain.