Traditionalist Approaches to Shari'ah Reform: Mawlana Ashraf 'Ali Thanawi's Fatwa on Women's Right to Divorce.

Abstract

This dissertation takes up the issue of ijtihād, creative legal reform, as defined and upheld by contemporary ‘ulamā (traditionally educated Muslim religious scholars). It centers in on a particular issue—women’s right to divorce—within a particular context—early 20th century colonial India—as a way to highlight the approaches of traditionalist Muslim scholars toward Islamic law, legal reform and the continuing relevance of the Islamic legal tradition.

By the 18th century, colonial administrators in India had cancelled the post of qādi and began administering civil cases, including those specific to Muslim family law, through the use of British, non-Muslim judges. This posed a particular problem for Indian Muslim women. As followers of the Hanafi school of legal jurisprudence, presenting their case before a Muslim judge was the only way for them to obtain a religiously-recognized divorce (other Sunni legal schools like the Māliki madhhab provide extra-judicial options). In the 1920s, news began to spread that some women were using apostasy as a legal stratagem to nullify their marital contracts. This subversive act not only challenged the legal authority of the Muslim scholars, it also threw into sharp relief the politics of communal identity and judicial representation in pre-Partition India.

The renowned jurist Mawlāna Ashraf ‘Ali Thānawi (d. 1943) saw this “misuse” of apostasy as a major problem and eventually consulted with a number of Māliki scholars to develop a different approach to Muslim women's right to divorce in India. In 1933, he published an important fatwa, essentially a long treatise, called al-Hīla al-Nājiza, which has left a lasting legacy inside and outside South Asia.