Al-Hīlah an-Nājizah (Women`s Right to have their marriage annulled) – Introduction

This treatise, al-Hīlah an-Nājizah, is one of the outstanding works of the Indian scholar, Hakīm al-Ummah Maulānā Ashraf `Alī Thanwi R.A [d. 1943/ 1362 AH]. We were fortunate to have been given the opportunity to study the book under Mufti Ebrahim Desai DB at Darul Iftaa, Durban, and subsequently, to witness live cases and marriage arbitrations and annulments, and actively participate in the practical application of the rulings contained in this book at Jamiatul Ulama KZN office in Durban.

This book was primarily an attempt to combat instances of apostasy and prevent cases where women had begun to leave the fold of Islam for the sake of obtaining divorces. It also illustrates an example of a traditional approach to reforming rulings and leaving taqlīd of one school for another consistent with contemporary circumstances and based on dharūrah (a greater need) while maintaining the principles of taqlīd and avoiding any sort of talfīq. Hereunder is a summary of the treatise, Al-Hīlah an-Nājizah.

The Book:

This compilation comprises six articles (rasā`il):

1. Al-Hīlah al-Nājizah li al-Halīlah al-`ājizah
2. Al-Mukhtārāt fī Muhimmāt al-Tafrīq wa al-Khiyārāt
3. Hukm al-Azdiwāj ma`a Ikhtilāfi dīn al-Azwāj
4. Al-Marqūmāt li al-Mażlūmāt – this is an easy-to-understand abridged version of the first three articles intended for laymen
5. Rifāq al-Mujtahidīn li al-nazr fi Wifāq al-Mujtahidīn – this contains responses to the objections directed against al-Hīlah al-Nājizah (this book).
6. Islam mae Khula` kī haqīqat – this article is a refutation written by Mufti Muhammad Taqī Uthmānī (in 1970) against the verdict rendered the Pakistan Supreme Court in 1967 that the Judge can allow the khula` of women without the consent of their husbands.

1.Al-Hīlah an-Nājizah

This treatise was compiled in the year 1351 A.H. It was comprised of an introduction and two parts:

Part 1. Tafwīdh al-Talāq – a perspective from the Hanafi school of Jurisprudence

Part 2. Faskh al-Nikāh – a perspective from the Maliki school of Jurisprudence[1]

Introduction[2]

 

Reasons for Compilation:

There were two reasons for the compilation of this book:

1. The first reason for this compilation was in response to the plea of women who were experiencing genuine difficulties and hardships in their marriage and were not able to come out of wedlock since the husband was refusing to issue a talāq or free her on khula` (money in exchange for a talāq)[3].

The woman may have experienced difficulties and hardships because of various reasons such as the husband being majnūn (insane), `innīn (impotent), muta`annit (oppressive and neglectful to the woman), mafqūd (lost) or ghā`ib (`truanting`/ absent).

Issue:

According to the Hanafi school of Jurisprudence, unless there is a Qādhī available, a woman will have no other avenue to get out of her marriage and have her marriage annulled (as is the case when residing in non-Muslim countries) .

What will the woman do in the face of all difficulties and hardships [mentioned above] in marriage while she is refused a divorce from her husband and in the absence of any Qādhi?

It was unfortunate that this resulted in the subjugation and exploitation of women and the consequence of these hardships and dilemmas was that several women were leaving the fold of Islam and becoming murtaddah in order to emancipate themselves from their distressing marriages.

Solution:

What solutions did the women have?

• Ideal Solution: To appoint Qudhāh (Muslim Judges) for different districts or to lobby the government to appoint such Qudhāh as instructed by `ulamā (scholars).
• Hanafi Solution: to adopt the concept of Tafwīdh al-Talāq (transferring the right of divorce to the woman)[4].
• Maliki Solution – To establish a judicial committee of a few individuals who will be qā`im maqam (replacement) of a Qādhī and thus enjoy the same powers as a Qadhī does, including the ability to annul a marriage on valid grounds and conditions as set out in the Mālikī school of Jurisprudence.

It is permissible in the Hanafi School to adopt the rulings of another school [and leave one`s own school of Jurisprudence] at times of dharūrah (need). [See Ad-Durr al-Mukhtār and Sharh `Uqūd Rasm al-Muftī] However, it must be a genuine dharūrah (need) and it must not result in talfiq and must be done so in an inclusive manner.

The author of this compilation [i.e. Moulana Ashraf `Ali Thanwi] thus hoped to adopt the solution provided by the Maliki school of Jurisprudence. Nevertheless, he first ensured he researched the books of the Malikī school and thereafter exchanged various letters enquiring each case from the Malikī scholars in the blessed city of Madīnah. He thereafter gained confirmation from the scholars of India and published this book entitled Al-Hīlah al-Nājizah.

2. The second reason for this compilation was to remove any jahālah (ignorance) and ensure masses do not abuse the Maliki School without strictly adhering to the rules [as set out in the Malikī tradition].

Order [tartīb] of the Treatise:

1. The rulings pertaining to Tafwidh at-Talāq
2. The rulings pertaining to the wife of an impotent [`innīn], insane [majnūn], `truanting` [ghā`ib], missing [mafqūd], or neglectful [muta`annit] husband
3. The written approvals [tasdīqāt] from the senior scholars of Deoband and Sahāranpur in India
4. The legal rulings [fatāwā] along with references as received from Maliki scholars in Madinah
5. The article al-Marqūmāt li al-Mazlūmāt was added later as a summary and an easy read for laymen.

Important Note:

There are two things necessary prior to the practical implementation of any ruling mentioned hereunder:

1. It is important to consult, seek regular clarity, ensure supervision, gain verification and a thorough understanding from a reliable and well-known scholar in practically applying any of the rulings mentioned. This scholar should preserve all the conditions set out herein, exert his hindsight and consult when necessary Maliki scholars and study reliable Maliki fatwa books.
2. Consult wukalā (lawyers/ attorneys) who are well acquainted with the state law on whether any of the rulings mention herein contradicts the law or not. We hereunder simply present rulings without taking any responsibility for any practice or action which contravenes the law.

However, if any of the rulings written in the book are not compatible with the state law then we ask scholars and professionals to endeavour and attempt to make the law compatible with it. This will be a great means of reward.

Acknowledgement:

Maulānā Husain Ahmad Madanī – who assisted in accessing and gathering fatāwā of Maliki scholars in Madinah

Maulana Zafar Ahmad – who prepared a basic draft of this article

Mufti Muhammad Shafī [5]and Mufti `Abd al-Karīm – who assisted in writing it with detail [tafsīl] and arranged it in a more presentable [murattab] manner

[The introduction was written by Maulānā Ashraf `Alī Thanwi, dated Dhul Qa`dah, 1351 A.H.]

 

 

[1] Some of which is exclusive to the Maliki school and some also shared by the Hanafi School.

[2] This is not a translation of the introduction but merely a summary of the key points mentioned therein.

[3] In Islamic law, the authority to issue a talāq belongs solely to the husband.

[4] However, most importantly, this would have had to be ascertained at the very outset of the marriage.

[5] Also see pg. 49 of The Great Scholars of the Deoband Islamic Seminary by Mufti Muhammad Taqī Uthmānī.

 

 

Posted in Academic Research on 12th Apr 2016 by Our Imam | 2171 Views