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Islamic Sharia Laws ( 24 March 2009, NewAgeIslam.Com)

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The Question of Kafu In Marriage: Casteism By Back Door?

The Role of Guardian in The Marriage of a Mature Girl

By Abdul Hameed No’mani

 Translated from Urdu by Raihan Nezami,

25 March 2009

            The debate on “Kafu” (in-caste-similarity) based on the casteism is not new. The similarity between the boy and the girl, and the social, cultural, ethical and mental understanding is called Kefa’at (similarity). Its significance has been maintained, anyway, by all the Aemma-e-Karam (May Allah be pleased with them) and the followers of different schools of thought. Its absolute refusal is adverse to the Islamic and social intelligence and wisdom; it also goes against the reality.

            Yet, to grant that level of compulsion to the “Kafu”  (in-caste-similarity) is also against the spirit and the wisdom of Islam – that the Nikah with a Ghair Kafu (out-of-caste) is invalid and inauthentic and the girl is to be married with another boy without seeking “Divorce” or “Fasakh”. A section of Fuqaha-e-Karam had expressed their opinion just to avoid social infuriation that the Nikah organized in the Ghair Kafu (out-of-caste) without the consent and permission of the guardian (Walee) is invalid and null and void, but the same opinion became the base for the Fatwahs later on. This Fatwah was considered to be the real Fatwah due to the excess publicity and promotion of the Fatawahs of Maulana Ahmed Raza Khan and some famous Deobandi and Barailwi scholars who belonged to a certain background in the society.  The Fatwah related to the validity of the Nikah totally disappeared from the sight, as the authentic and valid Fatwah according to the Quran-e-Kareem and Al- Sunnah and the practice of the Sahaba-e-Karam, in terms of the spirit of Shari’at, is different.

            Generally, the different aspects related to Ghair Kafu (dissimilarity) are ignored and the whole attention is paid to the working class and their professions whereas the Fatwah about Nikah with an out-of-caste is related to all the aspects of Kefa’at (similarity). The difference in invalidity of the Nikah due to the concession in Kafu (similarity) and non-concession in any of the aspects of Kefa’at (similarity) is absolutely neglected. As of now, the social and cultural situations are changing rapidly, the Fatwah of invalidity of the Nikah in Ghair Kafu (out-of-caste), which was asserted due to the fear of social annoyance earlier, is totally out of concern; its condition has absolutely changed, because now, the social disturbance is inevitable on the issuance of Fatwah of invalidity, it can be demolished by the confirmation of the validity of Nikah concerning a mature and adult girl.

 The Muftiyan-e-Karam like Mufti Aal-e-Mustafa Misbahee don’t have time to ponder over the point as to why the girls are marrying in Ghair Kafu (out-of-caste) and even different castes; whether this social disturbance is created because a mature girl is being married without her consent and permission, or being forced by her Walee (guardian) due to ego or the un-Islamic practice of casteism or delay and carelessness in the marriage of the adult girl from the guardian’s side, even after attaining the state of maturity. At present, the marriages of Muslim boys and girls of various castes are being performed with their mutual agreement, neglecting the concept of casteism and ignoring the guardian’s consent; it is due to present openness in the liberal society and metropolitan ultra-modern culture.

If the Fatwah of invalidity of such marriages is issued; the situation will be extremely critical and uncontrollable as their natural relation will be considered illegal and their children also will be affected. To avoid this situation, a great scholar of Fiqha Maulana Khalid Saifullah Rahmani has written – that Hussain bin Zeyad has copied from Imam Abu Haneefa (May Allah be pleased with him) “ The Nikah of a girl in Ghair Kafu (out-of-caste) will not be valid and authentic”. Generally, later on, others have issued Fatwah on the same basis.

But a lot of problems will be created in issuing Fatwah over this opinion as most such marriages which are performed in the cities without the guardian’s consent, even though guardians may remain silent while disagreeing with the marriage, will be declared invalid and illegal, so in the present time, the statement of obvious Rawayat seems to be correct and practical.

                                    (Jadeed Fiqhee Masael, Volume-2, Page-104)

Maulana Nadeem Al-Wajidee too has thrown some light on the same point in his recent article though it is not correct that his article is in favour and confirmation with Mufti Aal-e-Mustafa Misbahee. And according to the obvious Rawayat, the Nikah of a mature girl with the boy of her choice will be valid and legal even without the permission of the guardian, but if, there is any such demerit and defect in the groom or his family which is harmful for the guardian, he will have the right to object.

In this regard, the Deobandi and Barailwee Islamic scholars and Muftiyan-e-Karam (May Allah be pleased with them) related to the Hanfee Maslak, who believe in the backwards and forwards, pious and meanness, and division among the Muslim community, practice dual standards for the acquaintances and the outsiders, seem to be in a strange fit of confusion and show their contradictory behaviour and attitude. On one hand, they declare the Nikah in Ghair Kafu (out-of-caste), which is performed with the guardian’s consent, as invalid, inauthentic and illegal and in the next breath, after a few lines, issue another Fatwah that the guardian has the right to object over the marriage organized without his consent and he can apply for the Fasakh Nikah by lodging his complaint in the Muslim court. It means that the Nikah has been performed in the Islamic way. There is great contradiction found in both the Fatawahs as both the statements can be accepted at the same time. They should have be clear as to which one they believe in.

The invalidity of the Nikah in Ghair Kafu (out-of-caste) and the right to appeal in Muslim court for Fasakh Nikah are two different things; invalidity means Nikah is not valid and legal so there is no necessity for the “Divorce and Fasakh”, the guardian is free to get his daughter married anywhere with the person of his choice and authority as is asserted by Mufti Aal-e-Mustafa Misbahee; and the right and attempt to get the Fasakh performed in the Islamic court means that the Nikah is valid and authentic. If there is no Islamic court or justice, and Dar Al-Qadha, there is no need of “Murafi’ah” (the appealing of the matter before the Islamic court). To avoid the act of “Murafi’ah” (the appealing of the matter before the Islamic court), the people who issue Fatwah on the basis of Hassan bin Zeyad’s opinion have found a solution by declaring the Nikah in Ghair Kafu (out-of-caste) as illegal to save the guardian from appealing in the Islamic court as it is also not necessary that the Islamic judge would be judicious and will deliver the judgment in the guardian’s favour.  Such explanations and expressions are unavoidable due to the result of the issuing of Fatwah based on the weak and unreasonable opinions present in the books of Fiqha by Dar Mukhtar and Shamee etc. There is one notable thing to be mentioned that the matter of the invalidity of the Nikah in Ghair Kafu (out-of-caste) in accordance with the status and significance of the guardian (Walee) is present in Dar Mukhtar and other books of Fiqha; the guardian (Walee) got Wilayat-e-Istahbab (in which the right is based on the other’s will) and not the Wilayat-e-Ajbar (in which the right is not based on the other’s will) over the adult and the mature daughter. With this reference, the discussion, in real, is about the preference and superiority of the right and will of the guardian (Walee) over the mature daughter and vice versa; not between Kafu (within-caste-similarity) and Ghair Kafu (out-of-caste dissimilarity)

Syedna Imam-e-Azam Abu Haneefa (May Allah be pleased with him) found a way of social welfare in such Rawayat “No Nikah is valid without the permission of the guardian (Walee)”,  the guardian should be given the right to object according to his understanding in the case of his daughter’s Nikah in Ghair Kafu (out-of-caste). The nature of the problem is absolutely changed if the Fatwah of validity and invalidity of Nikah and non-organization of Nikah based on casteism in Ghair Kafu (out-of-caste) is accepted, and the solution presented by Syedna Imam-e-Azam Abu Haneefa (May Allah be pleased with him) becomes meaningless and baseless.

After copying the statement of invalid Nikah from Ghayatah Al-Awtar from Mehar Al-Faeq Bazazaiah, the research of the Fuqaha-e-Karam Burhan Al- Aemma is that the Nikah of a matured, sensible and religiously adult girl in Ghair Kafu (out-of-caste) even without the guardian’s agreement is valid and authentic. The present Fatwah because of its powerful arguments, is based on obvious Rawayat and the statement of Syedna Imam-e-Azam Abu Haneefa (May Allah be pleased with him) and Imam Abu Yusuf (May Allah be pleased with him), the same views are shared by Imam Muhammad (May Allah be pleased with him).

(Ghayath Al-Awtar, Translation –Dar Mukhtar, Translator – Allama Khurram Ali, Correction and Setting – Maulana Ehsan Siddiquee Nanautavee, Vol 2, Page- 25 printed by Naval Kishore- Kanpur,)

(The same Fatawahs are mentioned in the Alamgeeri Kitab Al-Nikah and Khulasath Al-Fatawah, Vol-2, Page-7)

The Fatawah of the invalidity of the Nikah of a mature girl with an out-of-caste without the guardian’s (Walee) consent is considered invalid according to the book Dar Mukhtar Ma’al Shamee, in the same book before this, another Fatwah is written that the Nikah of a mature girl even without the guardian’s (Walee) consent is considered valid and authentic. Maulana Khurram Ali writes after its translation, “It will be valid for both within-the-caste and out-of-caste, because the guardianship is optional, not mandatory and this is the rule of the religion. Syedna Imam-e-Azam Abu Haneefa, Imam Abu Yusuf and Imam Muhammad (May Allah be pleased with Them) have also approached the same rule and opinion.

(Ghayath Al-Awtar, Vol 2, Page- 25) printed by Naval Kishore, Kanpur)

The claim of Janab Aal-e-Mustafa and other Deobandee and Barailwee intellectuals is not correct that the Fatwah of the invalidity of the Nikah in Ghair Kafu (out-of-caste) is based on the statements of the Muftee, its only correct in the case of Ghair Kafu (out-of-caste) in the religion – that it is agreed by all, according to the Quran-e-Kareem and Kitab Al-Sunnah, not in the other cases of Ghair Kafu (out-of-caste) such as casteism and affluence. Except Deen-e-Islam, other aspects of Kefa’at (similarity) are related to the compromise for good management and better arrangements. The concession of absolute aspects of Kifayet (similarity) and the invalidity of the Nikah in Ghair Kafu (out-of-caste) are two different matters; discussion and demand of proof are other things, not the absolute aspects of Kefa’at (similarity). To divert the discussion to another direction by inter-twining the matters, is a fruitless effort to get their devastating and tormenting Fatawahs approved in a wrong way.

In this regard, an important question is:

 – Why Fatawahs are being issued based on the weak opinion and statements whereas the Zahir Al-Rawayet (obvious assertion) is being ignored which has got preference?

- How can a Fatwah of invalidity be according to the Mufti, if the Fatwahs have been issued on the Zahir Al-Rawayet (obvious assertion)?

Allama Shamee has written, in case the Fatawahs of the scholars are varied, the Fatawah of the Zahir Al-Rawayet (obvious assertion) will be preferred.

                                                    (Muqadmah-e-Shamee, Volume-1)

Some people’s statement that according to the Zahir Al-Rewayet (obvious assertion), Nikah is not valid, in case A’dam-Kafau (concession of similarity) is absolutely unrealistic and illogical. There should be a connection in the assertion and logic. They must present the proof on any of the aspects of Kefa’at (similarity) based on the religious concession for better management such as invalidity of the Nikah in case of A’dam-Kafau (concession of similarity), not the statements and Rawayets related to the acts of Kefa’at (similarity) for the better and permanent matrimonial relations, These things have nothing to do with the controversial matter.

Translated from Urdu by Raihan Nezami,


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