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 al-
Masaaharah’, 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-in-
law), 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 Abdur-
Rahman 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 Zina does not make Haraam, that which is Halaal. This is the saying of Ibn Abbas
Shafa’ee: (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 Why do you say so, whereas Allah has forbidden the mothers of your wives (to be
Shafa’ee: 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 One type of copulation is praiseworthy and leads to chastity, and the other type is
Shafa’ee: 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 Likewise is (i.e. Hurmat al-Masaaharah) that Allah has prohibited (i.e., the
Shafa’ee: 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 As far as the issue of our disagreement is concerned with respect to women, this is
Shafa’ee: 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 al-
Hidayah.

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 wa-
sallam) 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 ar-
Rasheed, 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 Abdul-
Barr, ‘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.386-
7)]

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.