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
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
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.