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Would that the honourable court
held by Justice Abdul Hafeez Cheema on 25 September 1996 giving the verdict
on a girl’s marriage without her Waliy’s2
consent had given weight to these points:
1. ‘No Nikah [marriage]
without Waliy’s consent’, a statement attributed to the Prophet
(sws) and taken by the court to mean No Nikah is valid without the
Waliy’s consent, is actually a statement of decree rather than of the Divine
law. The meaning, therefore, would be somewhat as follows: No Nikah
shall be allowed (or we shall not allow any Nikah) without the
Waliy’s consent. The reason for the decree? Family values. Marriage of
a man and a woman is a marriage between two families. The consent and the
good wishes of the families involved are highly important. Disparaging
this reality would amount to undermining the foundation on which the edifice
of an Islamic society rests.3
For that reason, the court may declare a Nikah without the Waliy’s consent
as void.4 But this consent
is not a condition the absence of which makes the contract void ab initio.5
Moreover, socially, the consent of the bridegroom’s Waliy is as essential
as is that of the bride’s.
2. The verse of the Qur’an
(4:25) used by the learned judge for his decision relates specifically
to slave-women.6 It is obvious
from the context of the verse that the verse allowed such Muslim men to
marry slave-women as could not afford to marry ‘free’ Muslim ladies, provided
they did that with the consent of the ahl (owners) of those slave-women.
Therefore, there are no grounds in the Qur’an for the belief that
a contract of marriage without Waliy’s consent makes the contract void
ab inito.7
3. Linguistically, the term
Nikah has always been used in an Islamic society to mean an openly
declared contract of marriage between a man and a woman made with their
intention to live together as husband and wife for the rest of their lives.
There are certain conditions
for this contract which, if not fulfilled, make the contract void ab inito,
for example free consent and mental competence. And there are some other
conditions which, if unfulfilled, make the contract voidable.
Of the conditions belonging
to the first category, two important, Islamic conditions are:
i) Open declaration of the Nikah.
Marriage must be announced publicly (through any reasonable means) so that
there is no room for any surreptitious sexual relationships.
ii) Intention to live together
permanently as husband and wife. Pre-planned divorce would make the contract
prostitution rather than Nikah.
Of the conditions belonging
to the second category, two important, Islamic conditions, among others,
are:
i) Dowry (to be paid by the
man) in accordance with the conventions of the society and in due consideration
of the woman’s status and the ability of the man to pay. The amount is
a token of the man’s seriousness to take up the responsibility towards
his wife-to-be.
ii) Waliy’s consent.
It seems that the underlying
object of the honourable court’s verdict (on 25 September 1996) was a check
on extra-marital relationships, whereas the reasons for having Waliy’s
consent in marriage are a stronger and healthier relationship between the
families involved and greater security and privilege for the bride and
the bridegroom. It is the condition of open declaration which serves as
a check on clandestine relationships. However, even when this condition
is not met, there is room -- especially when the parties involved are ignorant
of the correct legal procedure and there is an absence of a general awareness
of the correct law -- for sentences much lighter than automatic imposition
of hadd (Qur’anic punishment) for fornication and, in some cases,
there is room even for exoneration.
Would that the Taliban,
in their zeal for imposing Islam, were not unmindful of the following of
its principles:
1. Gradual implementation of
Islam in consideration of prevailing circumstances is itself Islam. For
example, though many sins and vices as Riba (interest) and wine
were prohibited even in the earlier Divine religions, God Almighty formally
prohibited them to the followers of the Prophet (sws) very gradually, after
the Prophet (sws) and his Companions (raa) were able to form and independent
state in Madinah, so that no unnecessary burden would fall on those
people who were following Islam. The Prophet’s advice (sws) to a governor
of his as reported in a certain hadith (narration) is also indicative of
the desirability of gradual implementation. God does not burden us beyond
our capability (the Qur’an 2:286) and He has not given us such laws
as unnecessarily make life difficult (the Qur’an 2:180). Only in
certain cases does Islam require extreme measures. For example, in Jihad
Islam may require such things of a man as might pose a great danger
to his life, honour and property.
In normal circumstances, one
should not make things unnecessarily difficult for oneself and for others.
Those who do that often end up wrestling with religion. And, as the Prophet
(sws) is reported to have said, he who wrestles with religion is often
defeated by it.
2. A government must have the
vote of the majority of the Muslims in a geographically independent area
to be legitimate Islamically. This principles is based on the Qur’anic
words amruhum shura baynahum (their affairs [are to be managed] by
consultation among them). Therefore, if Taliban fail to gather support
for their policies, there is a good chance that they will ultimately lose
government or continue to rule as an un-Islamic force.
3. Jihad without the
authority of the state is not Jihad8.
It is fasad (disorder or anarchy). Therefore, until Taliban form an independent
state in the areas they control by getting the vote of the Muslim majority
there, they do not have the right to wage Jihad against other rulers. And
even after they form a legitimate government, many other conditions will
need to be fulfilled before their battles with other Muslim rulers might
be termed as Jihad.
4. Taqlid, or following
the verdicts of earlier scholars without questioning them, is a convenient
way of ensuring that the very serious task of religious interpretation
does not fall into the hands of irresponsible novices. But when truth does
manifest itself -- perhaps as a result of research by a scholar in the
present times -- against the verdicts of earlier scholars, it is downright
Shirk (association with God) to deny it out of veneration
for earlier scholars.
If Taliban could delve
into some of the research work done in modern times on Islam -- and delve
with sincerity and sagacity --, they might find an Islam, emanating from
the Qur’an and the Sunnah, quite different from the one they
have in mind. To illustrate this point, we have included in this issue
some articles already published in Renaissance, which show that Taliban’s
interpretation of religion may be quite wrong in relation to many important
aspects of religion as role and duties of women, religious punishments,
apostasy and Jihad.
Therefore, we call are our reader’s
attention to articles in the Special Section included in this issue.
Would that Taliban too could
read these articles and could at least consider the possibility of their
being correct.
Would that the head of the state
were our Imam in the mosque as well, and his (that is government’s) representatives
the Imams where he was not available (see The Islamic Manifesto in this
magazine). In that way, the ruler would be the mawlviy and the mawlviy
would be out of politics. In that way, the mawlviy would be confined to
his real job: learning and teaching religion. And, in that way, there would
be an effective check on sectarianism, which will remain in our country
even if religious schools are shut down.
Would that we the Muslim were
on the top of the world. Would that the true Islam and its superiority
were clear to everyone. Would that....
O Si Sic Omina!
But
O tempora! O mores!9
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