India: Patriarchy and sectarianism: explaining the dissensions in the All-India Muslim Personal Law Board

Yoginder Sikand
The recent spate of splits in the All-India Muslim Personal Law Board (AIMPLB) has come as a rude shock to the ‘ulama on the Board who had arrogated to themselves the right to speak on behalf of the 150 million or more Muslims in India.
The setting up four new boards (one each by sections of the Shi‘a and Barelvi ‘ulama and one each by some Sunni and Shi‘a women) is obviously a major challenge to the authority of the AIMPLB’s largely Deobandi ‘ulama, which explains why the AIMPLB and its defenders have been so quick to damn them as alleged ‘conspiracies’ against Islam by so-called ‘enemies’ of the faith. This, of course, is a standard technique employed of stamping out dissent, explanations for challenges to clerical authority being typically framed in a conspiratorial mode.
It may well be that anti-Muslim groups, such as the RSS and its affiliated outfits, are exultant following the splits in the AIMPLB. There may also be an element of truth in the charge that a few politically ambitious Muslims associated with one or the other of the new boards do share some sort of links with Hindutvawadi elements or with the Congress Party. But the claim that the new boards represent a well-planned ‘conspiracy’ against Islam is simply too far-fetched to be believed. Rather than providing a cogent explanation for the splits, this claim simply avoids the hard-headed questions that urgently need to be addressed if future splits are to be avoided or if differences are to be resolved through reasoned dialogue. Threeo inter-related questions, in particular, need to be carefully considered in this regard. Firstly, the significant distinction between what is consid ered to be the divine shari‘ah, on the one hand, and fiqh, or Islamic jurisprudence, on the other. Secondly, intra-Muslim disputes, particularly between rival schools of thought or maslak, over the definition and content of normative Islam. Thirdly, the deep-rooted patriarchal worldview of the traditionalist ‘ulama that is reflected in their understanding of Islamic jurisprudence.

The Qur’an, as a cursory reading of the text would reveal, concerns itself mainly with beliefs and ethics, and is hardly a code of legal rules. Yet, not long after the death of the Prophet, the emerging class of professional ‘ulama set about developing a corpus of detailed laws, as reflected in the schools of fiqh, that sought to cover every conceivable aspect of a believer’s life, quite literally from the cradle to the grave. While some argue that this ‘comprehensive’ legal system is a sign of Islam’s veracity (comparing it favorably with other religions that lack anything like it), others see it as simply a tool of total control developed by the ‘ulama to bolster their own authority and to silence dissent and non-conformity.

The schools of fiqh differ considerably among each other on a wide range of issues. This itself suggests the human element in the development of fiqh and highlights the fact that the schools of fiqh are a historical construct. Yet, the traditionalist ‘ulama of the different fiqh schools and the various sects or maslaks tend to see their own version of fiqh and what is said to be the divinely mandated shari‘ah as almost wholly identical. Hence, any modification in fiqh, as, for instance, on the question of women’s rights, is generally seen as tantamount to an alleged interference in the divine shar‘iah and is vehemently opposed. The conflation of fiqh and shari‘ah also explains the inability of the Board to bring the traditionalist ‘ulama of the different maslaks to sort out the ir differences through dialogue. Most ‘ulama of the different maslaks believe that their own interpretation of fiqh, which they equate with the divine shari‘ah, is the only correct one. Quite obviously, this leads to a fundamental inability to consider dialogue as a means to sort out inter-sectarian differences.

That the irreconcilable contradictions of sect should have finally succeeded in dividing the Board should come as no surprise. It underlines the fact that the Muslims of India, like their Hindu counterparts, are hardly a homogenous community. The notion of a seamless Muslim monolith, equally dear to radical Islamists as well as unrelenting Islamophobes, has actually no basis in reality. Muslims are fiercely divided on the basis of sect or maslak, and each maslak thinks of itself as the sole ‘true’ Muslim community, faithfully following in the path of the Prophet. Consequently, all other maslaks are dismissed as ‘aberrant’, if not totally out of the pale of Islam. The deep-rooted sectarianism within the larger Muslim community seems to have proved too doggedly resistant to the efforts by the Board to present a united Muslim front or maintain a sense of M uslim unity. This explains why sections of the Barelvi and Shi‘a ‘ulama have now decided to set up their own personal law boards, arguing that the AIMPLB, being Deobandi-dominated, is unwilling to listen to their concerns.

The AIMPLB’s inability to address the sectarian question, which has led to the split in its ranks, reflects the fact that, by and large, the traditionalist ‘ulama have been consistently indifferent, if not plainly hostile, to genuine dialogue between the representatives of different maslaks. It is remarkable that while some Muslim groups in India today are engaged in a limited form of dialogue with people of other faiths (often for a missionary purpose), no single Muslim organization is engaged in promoting genuine (as opposed to cosmetic) dialogue between the different Muslim maslaks. At most, appeals are issued from time to time for Muslims, irrespective of maslak, to close their ranks and present a united front against what are routinely denounced as ‘enemies of Islam’. This, of course, in no way, constitutes inter-maslak dialogue in th e true sense of the term.

The hostility of large sections of the traditionalist ‘ulama to intra-maslak dialogue has to do, in large measure, with simple mundane bread-and-butter issues. Unlike Catholicism, Islam does not have a church that lays down the official doctrine. This opens the way for diverse, even mutually opposed, interpretations of Islam, each of which purports to represent the single normative Islamic tradition. The ‘ulama of the rival maslaks claim to be the authorities or representatives of the single ‘genuinely’ Islamic sect, and it is on this claim that their authority and influence rests. This claim is sought to be further bolstered by routine denunciations of rival Muslim sects, amply evident in the writings and fatwas of the ‘ulama, and in the curriculum of the madrasas, each of which i s associated with one maslak or the other.

Fierce sectarian rivalries among the traditionalist ‘ulama reflect a fundamental inability to come to terms with the theological ‘other’. Whether it be the non-Muslim ‘other’ or the sectarian Muslim ‘other’, they are all typically seen and defined as ‘enemies’ or ‘deviants’, threatening the purity of the faith, which comes to be reduced to a narrowly defined sectarian vision of Islam. This explains why the ‘ulama in general have shown little or no interest at all in promoting Muslim genuine ecumenism. This also explains why the Board has been unable to solve the sectarian problem within its own ranks that has lead finally to multiple splits in the Board itself.

The multiple splits in the AIMPLB and, in particular, the setting up of two women’s only Muslim personal law boards, owes also to a growing disenchantment among some Muslim women, as well as men, with the deeply-ingrained patriarchal fiqh tradition which the ‘ulama on the Board have so ardently sought to defend in the name of the protecting the shari‘ah. The fiqh schools developed in a patriarchal context, and hence it was inevitable that they came to uphold deeply-held patriarchal assumptions and lay down rules that are today seen as heavily unfair to women. This process was bolstered by the phenomenon of concocting ahadith, statements attributed to the Prophet Muhammad, that sought to legitimize women’s subordination and to effectively undermine many of the rights that the Qur’an had granted them, some of which were not available to non- Muslim women till recently. Since the majority of the traditionalist ‘ulama on the Board see the corpus of medieval fiqh, with its deeply-rooted patriarchal prescriptions, as representing the divine shari‘ah, they have refused to consider any changes in the law despite the increasingly vocal demands of women’s groups. This fact probably explains the setting up of the two parallel Muslim women’s personal law bodies in the last one week. The women behind these no doubt believe that their male ‘ulama cannot be entrusted with the task of defending their interests.

The conflation of fiqh and shari‘ah, as well as the deeply-rooted tradition of patriarchy which the traditionalist ‘ulama seek to defend in the name of upholding the shari‘ah, is clearly evident in a voluminous official publication by the AIMPLB that sought to initiate a process of codifying Muslim laws. Titled “Compendium of Islamic Laws: A Section-Wise Compilation of the Rules of Shari‘at Relating to Muslim Personal Law”, the book runs into almost 200 pages.[1] The Compendium was p repared at the instance of the then president of the Board, the late Qazi Mujahid ul-Islam Qasmi, a leading Deobandi scholar. The first draft of the book was prepared by Mufti Zainuddin of the Deoband madrasa, and, as such, reflects the position of the Deobandi maslak. As its title suggests, the book purports to explain the ‘rules of the shari‘at’, but as even a cursory reading will make clear it simply provides a detailed summary of provisions drawn from the corpus of medieval fiqh of the dominant Hanafi school. In other words, it conflates Hanafi fiqh and shari‘ah, presenting the results of human reflection on what are believed to be divine sources on par with the latter as such.

Given this, it is hardly surprising that the rules related to women that the book describes in considerable detail reflect the deeply entrenched patriarchal ethos of the Hanafi school. To be fair, the book describes various laws that provide Muslim women certain rights (as, for instance, inheritance rights or the right to choose a husband) that several other religions traditionally denied their womenfolk. Yet, these rights are so carefully circumcised and hemmed in that they seem to be of little positive consequence for women. By drawing heavily on medieval fiqh prescriptions in the name of shari‘ah, the Compendium succeeds, to a large extent, in severely limiting the rights that the Qur’an is said to have provided them.

A few examples will suffice to make the point. The Compendium remains silent on the Islamic right of women to stipulate conditions in their marriage contract (such as, for instance, that her husband will not arbitrarily divorce her or enter into a second marriage). All that it says in this regard is that ‘If in a marriage a condition has been stipulated which is repugnant to the objectives of marriage or which is haram (absolutely prohibited) by the shari‘at, the condition will be void […]’.[2] An other revealing example is that the rules for evidence for a range of matters are heavily weighted against women. ‘The evidence of two just men or a just man and two just women is essential for proof of fosterage’, it lays down.[3] Likewise, it insists, ‘If there is a dispute in ascertaining the proper dower, it will be proved by the evidence of two men or one man and two women’.

The Compendium also explicitly sanctions the marriage of minors, although such unions are a criminal offence in India, as in most other countries. It argues that the male guardians of a minor or of an insane person (!) have the right to have him or her married off.[5] Such a marriage, if arranged by the child’s father or paternal grandfather, is said to be binding even after the child attains the age of puberty. Adults, both males and females, are said to have the right to choose their own spouses, but this rig ht is sought to be circumcised for women. If an adult Muslim woman marries someone who is not her ‘social equal’ (kufu’) her parents, the Compendium pronounces, can intervene to get the marriage dissolved by the qazi. The parents of the woman enjoy the same right if she marries someone who is her ‘social equal’ but for less than the ‘proper’ dower. Strangely enough, and without offering any explanation, the Compendium lays down some pages later that ‘The marriage of a minor or mentally handicapped boy or girl arranged by his or her father or paternal grandfather, whether to equals or non-equals and whether in proper dower or not, becomes binding’.[6]

The rules of kufu’ that the Compendium elaborates reflect the sharply stratified, hierarchical and patriarchal social context in which the Hanafi school of fiqh developed, and appear to negate the egalitarianism that is so strongly stressed in the Qur’an. The Compendium lays down that a man and a woman may be said to be the kufu’ of each other if they come from roughly similar class backgrounds, but it also introduces race and ethnicity as factors in deciding kufu’. As numerous ‘low’ caste Muslims have argued, this is a means to legitimize caste and to preserve the hegemony of the ashraf castes—the Sayyeds, Shaikhs, Pathans and Mughals—all of whom claim foreign descent and, on that basis, assert a higher status than the masses of the ajlaf—Muslims of indigenous Indian origin . As the authors of the Compendium see it, the Arabs are somehow innately superior to the rest of God’s creation (despite the insistence of the Qur’an and authoritative statements of the Prophet Muhammad to the contrary).

Thus, the Compendium rather clumsily lays down:

“Regard shall be had in respect of descent among the Arabs, especially the Qur’aish [the tribe to which the Prophet Muhammad belonged], and those non-Arab families who have preserved descent. People in the rest of the non-Arab Muslim world are mutually equal (sic.)’.[7]

On the vexed issue of divorce, specifically triple divorce in one sitting pronounced by the husband, the Compendium is at pains to justify traditional patriarchal prescriptions of the Hanafi school. It claims that the shari‘at ‘regards divorce as […] an undesirable act’, but promptly proceeds to make it easy and instant for the husband. The choice of continuing a marriage or terminating it is seen as essentially one for the husband to make. It is framed essentially in terms of what the man deems suitable for himself. Thus, it lays down, ‘The decision whether a man can live a happy life with his wife or not and whether divorce is necessary or not relates to the sentiments of the husband. The decision in this regard can, therefore, be taken by the husband himself’.[8]

The Compendium recognizes that triple talaq in one sitting is a ‘wrongful innovation’ (bid‘at). It refers to it as ‘improper talaq’.[9] It even goes so far as branding it as ‘prohibited’. Yet, in the same sentence it declares that ‘if a person pronounces such a talaq it will be effective’ and the marriage would be considered dissolved. If the husband wants to reunite with his divorced wife, she would have to marry another man, have that marriage consummated, get divorced from him and then marry the first husband. How something ‘improper’ and ‘prohibited’ could be recognized as legally valid is a contradiction that the authors of the book do not engage with. Nor do they discuss how something ‘sinful’ could be accepted as allowable in a religion that prides itself in its claim of being God’s final and perfect revelation. Completely indifferent to the plight of divorced women, the Compendium insists on the validity of talaq pronounced in a state of drunkenness by a man. It does not explain why a woman should be so punished for the sins of her husband, particularly since consuming alcohol is considered as a punishable crime in Islam. Talaq uttered in anger by a husband is also said to be binding, although the caveat is added that the anger should not be ‘of extreme degree in which intellect is overpowered’.[10] Likewise, talaq uttered verbally under compulsion or duress or in jest is also said to valid.[11]

Many of these legal prescriptions, it should be noted, are not universally shared by the ‘ulama of the different maslaks. The Compendium is, in effect, a summary of the Hanafi Sunni code as interpreted by Deobandi ‘ulama, and other groups, such as the Shi‘as and the Ahl-i Hadith differ from several of the rules it lays down. Thus, for instance, the Ahl-i Hadith do not recognize talaq uttered in a state of inebriation as valid, and, like the Shi‘as, insist that three talaqs uttered in one sitting constitute just one, and not three, talaqs. As the contents of the Compendium suggest, the AIMPLB has sought to project Hanafi law as normative Islamic law, ignoring the claims of non-Hanafi groups who constitute a minority among the Indian Muslims. This explains, in part, the decision of some Shi‘a ‘ulama to set up thei r own board, finding the Board insensitive to their views.

Given the refusal of the AIMPLB to consider any significant reforms in fiqh formulations as they relate to women and its perceived insensitivity to Muslim women’s demands, it is hardly surprising that some Muslim women have now decided to set up their own boards, free from male control. The setting up of two new Muslim women’s personal law boards reflects a growing protest on the part of at least some Indian Muslim women against the deeply rooted patriarchal prejudice of the traditionalist ‘ulama, which cuts across sectarian lines. It directly questions the claims of the traditionalist ‘ulama on the AIMPLB to speak on behalf of all Muslims, women included. After all, as many Muslims would themselves stress, the AIMPLB is certainly not a representative body. Its members were not elected by the community and, thus, it cannot presume to have the support of the community as a whole. The vast majority of the Muslims have probably never even heard of the AIMPLB , although it claims to speak in their name. As the founders of the women’s personal law boards probably see it, the traditionalist ‘ulama in the AIMPLB have no right to claim the sole monopoly to interpret Islam. If, as the Qur’an itself states, religious knowledge is incumbent on all Muslims, men as well as women, there is no reason why Muslim women cannot interpret Islam for themselves, or so these women seem to be arguing.

In all, then, the multiple splits in the Board and the setting up of four parallel personal boards point both to a fracturing of the ‘hegemonic consensus’ within the traditionalist camp as well as to a growing challenge to the claims of the traditionalist ‘ulama by ‘ordinary’ Muslims. They are an indication that the AIMPLB’s aim of imposing a Deobandi-inspired patriarchal legal code on the entire Muslim community can no longer be sustained. New voices now demand to be heard, and, it appears, they now refuse to remain silenced. What this would mean for notions of community leadership, the right to speak for or about Islam and, in particular, Muslim women’s legal status, remains to be seen.

by Yoginder Sikand

[1] Compendium of Islamic Laws: A Section-Wise Compilation of the Rules of Shari‘at Relating to Muslim Personal Law, New Delhi: All-India Muslim Personal Law Board, 2001.

[2] Ibid., p.20.

[3] Ibid., p.25.

[4] Ibid., p.53.

[5] Ibid., p.29.

[6] Ibid., p.37.

[7] Ibid., p.47.

[8] Ibid., p.63.

[9] Ibid., p.71.

[10] Ibid., p.69.

[11] Ibid., p.70.