By Yoginder Sikand
15 February, 200
Although the Qur'an insists on the radical equality of all Muslims, caste (zat, jati, biraderi) remains a defining feature of Indian Muslim society, with significant regional variations. While the severity of caste among the Indian Muslims is hardly as acute as among the Hindus, with the practice of untouchability being virtually absent, caste and associated notions of caste-based superiority and inferiority still do play an important role in Indian Muslim society. In most parts of India, Muslim society is based on the existence of numerous endogamous and generally occupationally specific caste groups, that have their own caste appellations. This disjunction between Qur'anic egalitarianism and Indian Muslim social practice has been theorized by Muslim scholars in different ways. While some have sought to reconcile the two by interpreting the scripturalist sources of Islam to support social hierarchy, others have pointed out that the continued existence of caste-like features in Indian Muslim society is a flagrant violation of the Qur'anic worldview.
Most studies of caste in India deal with the classical Hindu caste system or with its present forms among the Hindus. Since caste is the basis of the Hindu social order and is written into the Brahminical texts, studies of caste have been largely Hindu-centric. Following from this, the existence of caste-like features among non-Hindu, including Muslim, communities in India is thus generally seen as a result of the cultural influence on these communities of their Hindu neighbours or of Hinduism itself. This claim is based on the untenable assumption of a once pure, radically egalitarian Muslim community in India later coming under the baneful impact of Hinduism. However, as several studies on caste among the Indian Muslims have shown, while the influence of Hindu social mores on the Muslims might partially explain the continued salience of caste among them it does not fully explain how the Muslims of the region came to be stratified on the basis of caste in the first place. It also ignores the role of sections of the 'ulama, scholars of Islamic jurisprudence, in providing religious legitimacy to caste with the help of the concept of kafa'a.
This article begins with a brief note on caste among the Indian Muslims, seeking to provide an explanation of the phenomenon based on the historical evolution of the Muslim community in India. It then looks at how, through the notion of kafa'a, caste and caste-based social hierarchy were sought to be accepted as normative and binding by important sections of the 'ulama. Through an examination of a text penned by a contemporary Indian Muslim scholar it then provides a critique of widely-held notions of kafa'a and caste based on the principle of Qur'anic egalitarianism.
Caste Among the Indian Muslims
The vast majority of the Indian Muslims are descendants of converts from what is today called 'Hinduism'. Individual conversions to Islam in medieval times were rare. Rather, typically, entire local caste groups or significant sections thereof underwent a gradual process of Islamisation, in the course of which elements of the Islamic faith were gradually incorporated into local cosmologies and ritual practice while gradually displacing or replacing local or 'Hindu' elements. In other words, conversion was both a social as well as a gradual process. Because it was a collective social process, the original endogamous circle prior to conversion was still preserved even after the group undergoing the process had witnessed a significant degree of cultural change. Hence, even after conversion to Islam marriage continued to take place within the original caste group. This is how Muslim society came to be characterized by the existence of multiple endogamous caste-like groups. Because mass conversion to Islam was also rarely, if ever, a sudden event, but, rather, generally took the form of a gradual process of cultural change, often extending over generations, many of the converts retained several of their local, pre-Islamic beliefs and practices. It was thus not the influence of Hinduism among a previously 'pure', 'uncontaminated' Muslim community as such, but, rather, the continued impact of Hindu beliefs and customs on the converts who still remained within a largely Hindu cultural universe and retained many of its associated beliefs and practices, that explains the continued hold of caste-related practices and assumptions among large sections of the Indian Muslim community.
The Ashraf-Ajlaf Divide
Scholarly writings on caste among Indian Muslims generally note the division that is often made between the so-called 'noble' castes or ashraf and those labeled as inferior, or razil, kamin or ajlaf. The ashraf-ajlaf division is not the invention of modern social scientists, for it is repeatedly mentioned in medieval works of ashraf scholars themselves. To these writers, Muslims of Arab, Central Asian, Iranian and Afghan extraction were superior in social status than local converts. This owed not just to racial differences, with local converts generally being dark-skinned and the ashraf lighter complexioned, but also to the fact that the ashraf belonged to the dominant political elites, while the bulk of the ajlaf remained associated with ancestral professions as artisans and peasants which were looked down upon as inferior and demeaning.
In order to provide suitable legitimacy to their claims of social superiority, medieval Indian ashraf scholars wrote numerous texts that sought to interpret the Qur'an to suit their purposes, thus effectively denying the Qur'an's message of radical social equality. Pre-Islamic Persian notions of the divine right of kings and the nobility, as opposed to the actual practice of the Prophet and the early Muslim community, seem to have exercised a powerful influence on these writers. A classical, oft-quoted example in this regard is provided by the Fatawa-i Jahandari, written by the fourteenth century Turkish scholar, Ziauddin Barani, a leading courtier of Muhammad bin Tughlaq, Sultan of Delhi. This text is the only known surviving Indo-Persian treatise exclusively devoted to political theory from the period of the Delhi Sultanate.
The Fatawa-i Jahandari shows Barani as a fervent champion of ashraf supremacy and as vehemently opposed to the ajlaf. In appealing to the Sultan to protect the ashraf and keep the ajlaf firmly under their control and submission he repeatedly refers to the Qur'an, from which he seeks to derive legitimacy from his arguments. His is not a rigorous scholarly approach to the Qur'an, however, for he conveniently misinterprets it to support the hegemonic claims of the ashraf, completely ignoring the Qur'an's insistence on social equality. In the process, he develops a doctrine and social vision for the ideal Muslim ruler, which, in their implications for what Barani calls the 'low-born', are hardly different in their severity than the classical Hindu law of caste as contained in the Manusmriti, the Brahminical law code. As Barani's translator, Mohammad Habib, writes, 'Barani's God, as is quite clear from his work, has two aspects-first, he is the tribal deity of the Musalmans; secondly, as between the Musalmans themselves, He is the tribal deity of well-born Muslims'. Barani was not a lone voice in his period, however, for he seems to echo a widely shared understanding of ashraf supremacy held by many of his ashraf contemporaries, including leading 'ulama and Sufis.
Barani's disdain for the 'low' born is well illustrated in his advice to the Sultan about education of the ajlaf. While the Qur'an and the traditions attributed to the Prophet repeatedly stress the need for all Muslims, men and women, rich and poor, to acquire knowledge, Barani insists that the Sultan should consider it his religious duty to deny the ajlaf access to knowledge, branding them as 'mean', and 'despicable'. Thus, he advises the Sultan:
Teachers of every kind are to be sternly ordered not to thrust precious stones down the throats of dogs or to put collars of gold round the necks of pigs and bears-that is, to the mean, the ignoble and the worthless, to shopkeepers and to the low-born they are to teach nothing more than the rules about prayer, fasting, religious charity and the haj pilgrimage, along with some chapters of the Qur'an and some doctrines of the faith, without which their religion cannot be correct and valid prayers are not possible. But they are to be taught nothing else, lest it bring honour to their mean souls.
As Barani sees it, if the ajlaf were allowed access to education, they might challenge ashraf hegemony. Therefore, he sternly warns the Sultan:
They are not to be taught reading and writing, for plenty of disorders arise owing to the skill of the low born in knowledge. The disorder into which all affairs of the religion and the state are thrown is due to the acts and words of the low born, who have become skilled. For, on account of their skill, they become governors (wali), revenue-collectors ('amils), auditors (mutassarif), officers (farman deh) and rulers (farman rawa). If teachers are disobedient, and it is discovered at the time of investigation that they have imparted knowledge or taught letters or writing to the low born, inevitably the punishment for their disobedience will be meted out to them.
In order to bolster his assertion that the Sultan should ensure that the ajlaf remain subservient to the ashraf, Barani seeks appropriate religious sanction. Thus, he asserts:
[.] to promote base, mean, low-born and worthless men to be the helpers and supporters of the government has not been permitted by any religion, creed, publicly accepted tradition or state-law.
He then goes on to elaborate a theory of the innate inferiority of the ajlaf, the superiority of the ashraf and the divine right of the Sultan to rule, based on a distorted interpretation of Islam. Thus, he writes that the 'merits' and 'demerits' of all people have been 'apportioned at the beginning of time and allotted to their souls'. Hence, people's acts are not of their own volition, but, rather, an expression and result of of 'Divine commandments'. God Himself, Barani claims, has decided that the ajlaf be confined to 'inferior' occupations, for He is said to have made them 'low born, bazaar people, base, mean, worthless, plebian, shameless and of dirty birth'. God has given them 'base' qualities, such as 'immodesty, wrongfulness, injustice, cruelty, non-recognition of rights, shamelessness, impudence, blood-shedding, rascality, jugglery and Godlessness' that are suitable only for such professions. Furthermore, these base qualities are inherited from father to son, and so the ajlaf must not attempt to take up professions reserved by God for the ashraf even if they are qualified to do so, for this would be a grave violation of the Divine Will. Likewise, Barani claims, God has bestowed the ashraf with noble virtues by birth itself, and these are transmitted hereditarily. Hence, they alone have the right and responsibility of taking up 'noble' occupations, such as ruling, teaching and preaching the faith.
Since God is held to have made the ajlaf innately despicable and base, to promote them would be a gross violation of the divine plan. 'In the promotion of the low and low-born brings', Barani argues, ' there is no advantage in this world, for it is impudent to act against the wisdom of Creation'. Hence, he insists that if the Sultan confers any post in his court or government service to the ajlaf, the 'court and the high position of the king will be disgraced, the people of God will be distressed and scattered, the objectives of the government will not be attained, and, finally, the king will be punished on the day of Judgment'. In this regard, he refers to a tradition attributed to the Prophet, according to which Muhammad is said to have declared, 'The vein is deceptive'. Although this tradition might be interpreted to suggest that one's social status does not depend on one's heredity, Barani offers a novel explanation of the tradition to suggest precisely the opposite conclusion, that 'the good vein and the bad vein draw towards virtue and vice', and that 'in the well-born and the noble only virtue and loyalty appear, while from the man of low birth and bad birth only wickedness and destruction originate'. Likewise, he provides a novel interpretation of a Qur'anic verse (xlix: 13) to support his claim of ashraf superiority. He quotes the Qur'an as saying that God honours the pious, a statement that has generally been read to suggest that superiority in God's eyes depends on one's piety and not birth, to arrive at precisely the opposite conclusion. The verse, he says, implies that '[.] it ought to be known that in the impure and impure-born and low and low-born, there can be no piety'.
As Barani's writings on the ajlaf so clearly suggest, many medieval ashraf scholars shared a common understanding of the 'low-born' as born to serve the ashraf. Accordingly, to leigitimize this claim they interpreted the Qur'an as sanctioning a sternly hierarchical social order, with the subordinate status of the ajlaf ascribed to the Divine Will. As H.N.Ansari, a contemporary Indian Muslim scholar and an activist of a 'low' caste Muslim organization, remarks, this represented a profoundly 'un-Islamic' reading of the Qur'an, which stresses the equality of all Muslims and lays down piety as the only criterion for merit in God's eyes. Yet, Ansari adds, men like Barani exercised a powerful influence in their times with their wrong interpretations of the Qur'an, resulting in the 'complete betrayal of the Qur'anic precepts of brotherhood'.
To imagine, as some writers today assert, a solidly egalitarian Muslim community pitted against a sternly hierarchical Hindu community in medieval India is thus hardly convincing. Nor, for that matter, is the explanation of the existence of caste and social hierarchy among Muslims as a result of the baneful impact of hierarchical Hinduism on egalitarian Islam. Although the impact of the wider Hindu society on the beliefs and practices of the Muslims is obvious, in the face of hierarchical notions of religion and the normative social order as reflected in the writings of Barani, it is obvious that the Muslim elite played an equally central role in promoting and preserving social hierarchy by seeking to provide it with suitable 'Islamic' sanction. The effort to legitimize caste in 'Islamic' terms was given further impetus by the 'ulama through the notion of kafa'a, to which we now turn.
Kafa'a and the Legitimisation of Caste by the Indian 'Ulama
The Qur'an and the genuine Prophetic traditions consider Muslims as equals, and hence allow for any Muslim to marry a suitable Muslim spouse. In deciding an ideal marriage partner the Qur'an suggests the criteria of piety (taqwa) and faith (iman), regarding these, rather than birth or wealth, as the only mark of a person's nearness to God. It is clear from the records of the Prophet and his companions that this principle was actually acted upon. Thus, for instance, we hear of instances of slave men or recently freed slaves marrying free women with the Prophet's consent.
Over time, however, as Islam spread to new regions outside the confines of the Arabian peninsula, the early egalitarian Muslim society was transformed into a complex, sharply hierarchical social order. This owed to several factors, including the 'feudalisation' of Islam accompanying the emergence of the Ummayad empire; the incorporation of non-Arab groups as subordinate 'clients' (mawali) of ruling Arab tribes; and the impact of other cultures, particularly Greek and Persian, in which social hierarchies were already deeply entrenched. These developments exercised a propound influence on the emerging schools of Islamic law (mazahib). As a result, notions of social hierarchy based on birth that were foreign to the Qur'an and to the early Muslim community were gradually incorporated into the corpus of writings of Islamic jurisprudence or fiqh.
One manifestation of this was the central importance that the fuqaha or scholars of the different schools of Islamic jurisprudence now began paying to the notion of equality of status in matters of marriage or kafa'a. Elaborate rules were constructed built on the notion of kafa'a that specified the 'equals' whom one could legitimately marry. Taking a spouse from outside one's kafa'a was sternly frowned upon, if not explicitly forbidden by the fuqaha. In the face of Qur'anic and genuine Prophetic traditions that stressed that the only basis for selecting one's marital partner was piety, the scripturalist sources of Islam were suitably misinterpreted to provide legitimacy for notions of kafa'a based on wealth and birth, including ethnicity.
These debates on kafa'a have a direct bearing on how the Indian Muslim 'ulama have looked at the question of caste, caste endogamy and inter-caste relations. Since the vast majority of the Indian Muslims follow the Hanafi school, the opinions of the classical Hanafi 'ulama on kafa'a continue to determine the attitudes of the Indian 'ulama on the question of caste and social hierarchy. Most Indian Hanafis seem to have regarded caste (biraderi), understood here as hereditary occupational group, as an essential factor in deciding kafa'a, and in this way have provided fiqh legitimacy to the notion of caste.
The detailed debates among the fuqaha of the law schools about kafa'a need not detain us here, and it is sufficient to mention that they differed somewhat on the criterion for deciding it. 'Abdul Hamid Nu'mani, a contemporary Indian Muslim scholar, writes that many classical fuqaha considered the following issues to decide one's kafa'a for purposes of marriage: legal status as free or enslaved (azadi); economic status (maldari); occupation (pesha); intelligence ('aql); family origin or ethnicity (nasb); absence of bodily defects and illness; and, finally, piety (taqwa). All these are said to have been deciding factors for kafa'a for the Hanafis and the Hanbalis, while according to Imam Malik, the real basis of kafa'a is said to have been piety. Imam Shafi' is said not to have included wealth in kafa'a. On the whole, however, most fuqaha insisted on taking factors other than simply piety in deciding kafa'a. In the Indian context, this expanded notion of kafa'a, representing a considerable departure from the Qur'an, was accepted as laying down the norms for deciding on the legality of a Muslim marriage. By restricting marriage to one's occupational and ethnic group, caste, which is, in theory, an endogamous birth-based occupational category, came to be regarded as essential to establishing kafa'a for purposes of marriage. In this way, the notion of kafa'a helped to provide legitimacy to the existence of caste among the Indian Muslims by effectively restricting marriage within the endogamous caste circle. This is readily apparent even in the fatwa literature produced by several recent Indian 'ulama, an issue that we now look at.
To illustrate the ways in which significant sections of the Indian 'ulama have sought to employ the concept of kafa'a to legitimize caste and social inequality I focus here on a slim Urdu tract on the subject penned by a contemporary Indian Muslim scholar, Maulana 'Abdul Hamid Nu'mani. A senior leader of the Jami'at ul-'Ulama-i Hind ('The Union of the 'Ulama of India), Nu'mani belongs to the Ansari caste of hereditary weavers, traditionally considered by ashraf Muslims as 'low' in social status. His tract is a modified version of a speech that he delivered in 1994 at the request of the Anjuman Khuddam al-Qur'an, a Muslim missionary organization based at the town of Vaniyambadi in the southern Indian state of Tamil Nadu. The Anjuman had invited him to deliver a lecture on the subject of Islamic mission (tabligh) and the question of kafa'a, for the Anjuman had itself discovered that one of the major hurdles in its missionary outreach work among the low-caste Hindus of the area was that while the converts were readily accepted as religious equals by other Muslims, the latter were unwilling, on grounds of kafa'a, to intermarry with them. For the Anjuman, this problem appeared as a central concern for, by making the life of the converts difficult, it made conversion to Islam an unviable option for many. Accordingly, in order to clarify the 'true' Islamic perspective on kafa'a and to oppose notions of kafa'a that legitimize caste and social inequality, the Anjuman requested Nu'mani to deliver a scholarly paper on the subject in the light of the teachings of the Qur'an. The speech was apparently very well received, and was shortly published as a booklet, suitably titled Masla-i Kufw Aur Isha'at-i Islam ('The Problem of Kafa'a and the Spread of Islam').
Nu'mani beings his tract by arguing that the single most important factor for the spread of Islam in India was the Qur'an's message of radical social equality (masavat) and respect for all humankind (ihtiram-i admiyat). This naturally appealed most to the downtrodden 'low' castes who were sternly oppressed by the Brahminical religion and the caste system on which it was based. The Sufis who propagated Islam among the 'low' castes are said to have been seriously committed to their welfare, but because their scale of work was so immense they were unable to properly tend to the proper Islamic instruction of their neophytes. Therefore, Nu'mani says, the converts retained several of their pre-Islamic beliefs and practices, including notions of caste. Further, he writes, caste and related concepts of birth-based ritual status were given added legitimacy by Muslim rulers and missionaries who had come to India from the lands of 'ajam, Iran, Turkey and Central Asia, where concepts of social inequality were already well entrenched.
Nu'mani quotes extensively from Barani's Fatawa-i Jahandari to show how discriminatory attitudes towards low-caste converts were widely shared by medieval Muslim elites. He also comments on the absence of any effective opposition to such views. In fact, he goes so far as to claim that, 'From Barani's time till 1947 the notion of Muslim society being divided into ashraf and ajlaf, high and low, was continuously present'. He refers to some twentieth century Indian 'ulama of his own Deobandi school as opposing caste-based inequality among the Indian Muslims but laments that 'this sickness has not as yet been fully eliminated'. He admits that although the caste system is less severe among the Muslims than it is among the Hindus, in that untouchability is absent among the former, with caste playing a determining role only in marriage among Muslims. Yet, he pleads for Muslims to combat notions of caste based superiority and inferiority, for only then, he argues, can efforts to spread Islam among 'low' caste Hindus be effective. For this purpose, he says, a radical revisioning of the concept of kafa'a is urgently required.
The remainder of the text consists of an elaborate discussion of the notion of kafa'a. In the process of developing a Qur'anic notion of kafa'a, Nu'mani surveys notions of kafa'a as developed by the classical fuqaha and further elaborated upon by various Indian 'ulama. Since his concern is to revive the original Qur'anic notion of kafa'a, which alone he sees as normative and binding, he engages in a process of ijtihad (although he does not refer to it as such), refusing to remain tied down by formulations of kafa'a as contained in the corpus of fiqh, including of the Hanafi school with which he is associated. In evoking what he calls the true Islamic position on kafa'a, he has four broad objectives. Firstly, to revive the original message of radical social equality of the Qur'an which he sees many later 'ulama as having distorted, willfully or otherwise. Secondly, to combat caste-based divisions among the Muslims and thereby to promote Muslim unity. Thirdly, to disprove claims of critics that Islam is not an egalitarian religion and that, therefore, it cannot provide equality to 'low' caste Hindu converts. Finally, to provide an understanding of kafa'a that, being liberated from notions of caste, can help in integrating converts into the mainstream of Muslim society through inter-marriage and thereby remove a major hurdle in the path of Muslim missionary work, particularly among 'low' caste Hindus.
In doing so, Nu'mani has to deal with reports attributed to the Prophet and some of his close companions that seem to legitimize social inequality, as well as the writings of the classical fuqaha on the subject of kafa'a. As regards certain hadith which seem to promote discriminatory attitudes towards people who follow certain 'low' professions, Nu'mani subjects the lines of transmission (isnad) as well as content (matn) of these reports to close scrutiny, concluding that they are fabricated. He explains some statements by the companions of the Prophet that militate against social equality by reading them contextually, and hence argues that they are not applicable for all time. On the restrictive provisions related to kafa'a that the fuqaha have prescribed, Nu'mani insists that the Qur'an and the genuine Hadith should be the sole criterion for judging them. Since the corpus of fiqh is a post-Qur'anic development, and since the fuqaha were mere mortals, although they might have been well intentioned, Nu'mani suggests that Muslims should not blindly follow their prescriptions if they violate the Qur'an and the genuine Hadith. However, rather than opposing the opinions of the fuqaha directly he points to the differences between the different schools of fiqh, and within each school the varying opinions of different fuqaha, on the question of kafa'a, highlighting those views that support his own radically egalitarian understanding of kafa'a.
After providing a brief note on the varying definitions of kafa'a in different schools of Islamic jurisprudence, Nu'mani writes that according to the Qur'an, kafa'a is based only on piety. Hence, the only criterion for deciding a marriage partner should, ideally, be his or her personal character and dedication to the faith. In other words, he suggests, there is no religious bar for a Muslim man from a low caste or a low caste Hindu convert to Islam to marry a Muslim girl from a high caste or vice versa. This, of course, goes completely against dominant notions of kafa'a. Nu'mani does not openly question the schools of fiqh as such. Rather, he points to possibilities within the existing schools and to differences among the fuqaha of the different schools as well as within each school to press his claim for an egalitarian reading of kafa'a.
In arguing the case for an egalitarian interpretation of kafa'a Nu'mani has to contend with traditions that have been used by many scholars to insist on the need for people to marry within their same social class. He does not deny the veracity of such claims but interprets them in a novel way to bolster his argument that cross-class marriages are to be regarded as legitimate as well. Thus, for instance, he refers to a tradition according to which the third caliph, 'Umar, refused to let a girl from a rich family to marry a man from a lower class. Nu'mani does not say that the caliph was wrong in his pronouncement. Rather, he says, his opinion was correct because it might be difficult for such a girl to live in poor family without the comforts to which she was used to before marriage. Hence, for marital compatibility a rough equality of economic status is indeed preferable. However, Nu'mani argues, this does not mean that a girl from a rich family cannot marry a poor man or that equality in economic status is an absolute necessity in marriage. Nu'mani recognizes that rough equality of economic status is preferable in marriage partners, but insists that it is not absolutely essential. To use 'Umar's decision to argue the case that marriage must take place only within one's social class or caste, is therefore, untenable. Nu'mani here quotes another, conflicting report attributed to 'Umar, according to which the caliph declared that in deciding a man's marriage partner he did not consider her ethnic or economic status.
Likewise, on the question of occupation (pesha) in determining kafa'a, Nu'mani writes that many 'ulama have adopted what he calls an 'unnecessarily restrictive' attitude, which has led to notions of caste superiority and inferiority since caste is, in theory, also an occupational category. Nu'mani remarks that this is particularly unfortunate, given that Imam Abu Hanifa, whose school of jurisprudence most Indian Muslims claim to follow, did not himself consider occupation as a factor in determining kafa'a. This is because one's occupation does not always remain the same and can, in theory, change. Nu'mani also refers to some Hanafi jurists who placed knowledge ('ilm) above profession in deciding kafa'a, thereby allowing a learned Muslim from a family following a 'low' profession to marry a woman from a 'respectable' family. On the other hand, Nu'mani notes that some Hanafi 'ulama, including Imam Abu Yusuf, a student of Abu Hanifa, did include occupation in deciding kafa'a, going
so far as to single out the profession of weavers, barbers and tailors as 'despicable'. On the basis of this, Nu'mani says, numerous Hanafi 'ulama have issued fatwas declaring weavers, barbers and tailors to be outside the kafa'a of those who pursue other, more 'respectable', professions. He notes that some fuqaha have adopted a somewhat less severe position on the matter by declaring that if a weaver gives up his profession and takes to trade, then he can be considered the kafa'a of a trader and can marry a trader's daughter. Not all Hanafi 'ulama were ready to provide this concession, however. Nu'mani refers to Ibn Najim who opined that even if a person were to abandon a 'low' profession he would not be able to remove the 'stains' that, allegedly, inevitably form on his character from such an occupation and hence he cannot be considered as the kafa'a of a person from a family that follows a 'respectable' profession. Closer to our times, Nu'mani notes, Ahmad Raza Khan (1856-1921), the founder of the Barelwi school, is said to have declared that weavers, cobblers and barbers, even if learned in religion, could not be considered the kafa'a of those following 'respectable' professions. Hence, Nu'mani remarks, the notion that one should not marry outside one's occupational group, which in India is generally the caste group, is widely accepted by many Indian Hanafi 'ulama.
In discussing the Hanafi position on kafa'a being determined, among other factors, by one's profession, Nu'mani writes that Hanafi 'ulama have resorted to two sources to legitimize their argument. Firstly, popular custom or 'urf. By regarding caste-based occupation as a legitimate 'urf they have sought to incorporate it into the corpus of fiqh. This, however, says Nu'mani, is a gross violation of Islam and 'a conscious or unconscious imitation of the Indian Brahminical social system'. The other source that the fuqaha have invoked to support their claim of kafa'a being dependent on occupation is a single hadith attributed to the Prophet. According to this narration, the Prophet is said to have declared that weavers and barbers are not to be considered as the kafa'a of others. This means, therefore, that weavers and barbers cannot marry people who belong to families that follow other professions. Nu'mani remarks that this hadith is 'very weak' (intihai za'if) and adds that numerous scholars of Hadith have argued that it is a later fabrication wrongly attributed to the Prophet. How could the Prophet, who is considered as a source of mercy for all, consider any members of his community as despicable simply because they were weavers or barbers, Num'ani asks. Indirectly critiquing these anti-egalitarian reports, Nu'mani here refers to several prophets before Muhammad as well as numerous companions of Muhammad who engaged in occupations that some later fuqaha wrongly described as 'low'. Thus, he notes that the prophet David was an artisan and that numerous companions of Muhammad were weavers and carpenters.
Nu'mani writes that all legitimate (halal, jai'z) occupations are noble and praise-worthy in God's eyes, and hence to claim that weaving, barbering and other such trades are 'despicable' as some fuqaha have done, is completely against basic Islamic teachings. Therefore, he argues, from a strictly Qur'anic perspective, a person pursuing any legitimate profession may be considered the kafa'a of any other similar person for purposes of marriage. In this regard he quotes Mufti Kifayatullah, a leading Indian Deobandi scholar, whom he singles out as one of the few Indian 'ulama to have taken a correct position on kafa'a, as having declared in a fatwa that 'To consider someone inferior simply because he follows a legitimate is profession is opposed to the teachings of Islam'. In approvingly quoting Mufti Kifayatullah here Nu'mani does not deny that several other leading Deobandi scholars, such as Ashraf Ali Thanwi and Mufti Muhammad Shafi, had adopted a divergent stance by supporting the dominant Hanafi position on kafa'a as being determined, among other factors, by occupation. He also admits that Thanwi had gone so far as to declare weavers and oil-pressers as 'low' castes. Yet, he claims, in contrast to their Barelwi opponents, the Deobandi 'ulama have never hesitated to correct each other's views. Indeed, he does this himself explicitly in critiquing the views of his fellow Deobandis, renowned 'ulama such as Thanwi and Shafi, on the matter of kafa'a.
Family, tribe or ethnic group (nasb) have also been considered by several classical fuqaha as well as Indian 'ulama as an essential basis for deciding kafa'a. Yet, Nu'mani writes, not one of the several traditions attributed to the Prophet that have been adduced for this purpose have been proved to be fully genuine (sahih). They are all said to be 'very weak' and even 'fabricated' (mauzu). Nu'mani examines five traditions attributed to the Prophet that are generally used to argue the case for nasb to be included in kafa'a. All of them, he contends, are fabricated, have weak chains of narration (isnad) or else do not have any direct bearing on the question of nasb in marriage. To illustrate his argument, he focuses on one particular tradition, according to which the Prophet is said to have laid down that all members of his Qur'aish clan are of the same kafa'a; that all Arabs belong to the same kafa'a; that members of one tribe are the kafa'a of each other; and that all people are of the same kafa'a except for weavers and barbers. Like other similar reports, this one, too, Nu'mani claims, is not to be regarded as absolutely authentic for it has a weak narrative chain. Indeed, several Islamic scholars have insisted that it is 'completely fabricated'. This report is said also to completely contradict the teachings of the Qur'an, the genuine prophetic traditions and the practice of the companions of the Prophet, and, for that additional reason, is not to be regarded as authentic. The Qur'an repeatedly stresses that all Muslims are equal, and one such Qur'anic verse, Nu'mani writes, is said to have been specifically revealed to the Prophet to refute the belief that people should marry only within their own tribe. Likewise, numerous genuine Prophetic traditions are said to directly oppose the belief in nasb being essential to kafa'a. Thus, several companions of the Prophet are said to have married outside their tribe with the Prophet's consent. The
Prophet advised one of his followers, an Ansar from Medina, to give his daughter in marriage to one of his closest companions, Bilal, a freed black slave. Abu Bakr, the first caliph, accepted the marriage proposal of Salman Farsi, a Persian companion of the Prophet, to marry his daughter. All this very clearly proves, Nu'mani writes, that it is indeed legitimate to marry outside one's ethnic group or caste and that the bar on such marriages placed by numerous fuqaha is not Islamic.
Despite the clear evidence in the Qur'an and the Hadith that nasb is not to be included in kafa'a, Nu'mani notes that several fuqaha have expressed contrary opinions. However, he writes that there is no complete consensus among the fuqaha on the matter. Thus, Imam Malik as well as some Hanafi 'ulama did not include nasb in establishing kafa'a, while Imam Abu Hanifa and Imam Shafi' did so. There are conflicting views on Imam Ahmad ibn Hanbal's opinion. According to one report he ignored nasb in establishing kafa'a, while according to another report he regarded all Arabs as being equal for marriage purposes, and all non-Arabs ('ajamis) as equal, thus forbidding marriage between Arabs and non-Arabs. Nu'mani argues that those fuqaha who included nasb in kafa'a probably did so because of the particular social conditions prevailing at their time. However, he adds, because of the 'unnecessary importance' which the contemporary Indian 'ulama give to nasb, 'numerous social problems have been created' and non-Muslims are 'getting a wrong message' about Islam. Hence, he appeals for 'serious thinking' on the matter of nasb in establishing kafa'a. A mark of the remarkable flexibility of Nu'mani's approach to fiqh is his approval of the few Indian Hanafi 'ulama who have adopted the position of Imam Malik on the question of nasb in kafa'a in their fatwas instead of blindly following the dominant Hanafi position.
Further on the question of linking nasb to kafa'a, Nu'mani deals with the distinction that many Hanafi scholars have established between old Muslims (jadid al-islam musalman) and new Muslims (jadid al-Islam musalman), and arguing that the two may not intermarry because they are not the kafa'a of each other. According to these scholars, a man who converts to Islam cannot marry a woman who was born to a Muslim father. The son of a convert to Islam cannot marry a woman whose paternal grandfather and father were Muslims, but the grandson of a convert can marry a woman from an 'old' Muslim family. Accordingly, a convert to Islam can only marry a fellow convert. This holds true only for non-Arabs, there being no distinction between 'old' and 'new' Muslims for Arabs.
Nu'mani sees this restrictive provision as making life for converts to Islam even more difficult and, therefore, making conversion to Islam a difficult choice for non-Muslims. By making this distinction between 'old' and 'new' Muslims, he says, 'rather than welcoming our new guests we are insulting them'. Accordingly, he fervently appeals to his fellow 'ulama to relax or abandon this rule, which in any case he sees as having no sanction in Islam. He reminds them that because they insisted on this un-Islamic provision, a large group of Hindus of the Tyagi caste in northern India who were ready to convert to Islam finally decided not to because the Muslim Tyagis refused to intermarry with them on the grounds that 'old' Muslims could not establish marital relations with converts. Likewise, Nu'mani writes, it was because of the discriminatory and anti-Qur'anic rules that the 'ulama have devised on kafa'a that Dr. Ambedkar, the leader of the 'low' caste Dalits, declined to convert to
Islam, choosing Buddhism instead.
Nu'mani admits that some of his fellow Deobandis have argued that 'old' and 'new' Muslims are not of the same kafa'a and so cannot intermarry. In addition, he notes that they have also argued that Muslims from different castes cannot marry on the grounds of not belonging to the same nasb. Yet, Nu'mani refuses to be bound by their views. In order to press his claim that nasb should not be regarded as an essential factor in determining kafa'a he points to alternate opinions within the broader Deobandi tradition. Thus, he refers to fatwas by such scholars Mufi Kifayatullah and Sayyed Sulaiman Nadwi asserting that nasb was not to be considered as essential component of kafa'a, and that a convert could indeed marry into a family of 'old' Muslims on the grounds that all Muslims are equal. Nu'mani notes the existence of what he calls 'very weak' prophetic traditions stressing nasb in kafa'a, but says that in their light 'at the most' what can be said is that it might be better to marry within one's ethnic group or caste (biraderi) than outside. However, he says, this clearly does not mean that marriage must only take place within one's caste but only that marrying outside one's caste is not disallowed by the shari'ah. If marriage outside one's caste were thus to be recognized, Nu'mani suggests that it would promote Muslim unity, help converts to Islam find spouses within the Muslim community, and counter the perception among non-Muslims' of the existence of caste discrimination among Muslims.
After reviewing the writings of the classical fuqaha and some influential twentieth century Indian Hanafi scholars on kafa'a being determined by wealth, occupation and ethnicity, Nu'mani writes that, notwithstanding their differences, all the schools of Sunni jurisprudence are agreed that piety should be a determining factor in deciding kafa'a in marriage. 'It should not be', he writes, 'that a pious girl who regularly says her prayers and keeps her fasts should be married to a criminal' simply because he belongs to the same ethnic or occupational group. He approvingly refers to some classical fuqaha who opined that the piety was to be the only determining factor in selecting a marriage partner. In order to further support his contention that piety alone should be the criterion for kafa'a he quotes a Prophetic tradition to the effect that a marriage proposal from a man of high morals should be accepted, otherwise it would lead to strife. In another hadith the Prophet is said to have warned against marrying a woman simply because of her beauty or wealth. Her good looks might lead her to evil ways, while her wealth might make her rebellious and proud. On the other hand, a pious black slave girl, Muhammad declared, made a much better marriage partner. Thus, Nu'mani concludes, the Qur'an and the genuine prophetic traditions clearly suggest that it is piety alone that should be basis of kafa'a, with other factors 'having no real importance'.
In effect, then, by subjecting the existing corpus of fiqh and the writings of the classical and later Indian 'ulama to a critical reading, Nu'mani argues for the need to go back to the Qur'an and the genuine Prophetic traditions to develop a new fiqhi perspective on kafa'a and caste. By appealing to the radically egalitarian social ethics contained in the Qur'an and the genuine Prophetic traditions, by subjecting some traditions that seem to promote social inequality to a critical contextual reading, by dismissing anti-egalitarian traditions as inauthentic, and by pointing out the divergent views of the fuqaha and 'ulama of different schools of jurisprudence and within each school on the matter of kafa'a, Nu'mani argues that piety alone should be considered as the essential basis of kafa'a. In this way, he critiques both the notion of caste as well as the arguments of the fuqaha who have sought to incorporate caste as a major factor in deciding kafa'a and thereby grant caste a certain religious legitimacy.
As this paper has sought to show, although the Qur'an and the genuine Prophetic traditions suggest a radically egalitarian social vision, actual Muslim social practice, including in India, points to the existence of sharp social hierarchies that numerous Muslim scholars have sought to provide appropriate 'Islamic' sanction through elaborate rules of fiqh associated with the notion of kafa'a. This was further boosted by distorted interpretations of the Qur'an and the invention of reports attributed to the Prophet that sought to legitimize social inequality based on ethnicity and occupation. In the Indian context, numerous leading 'ulama, almost all from the 'high' castes, have used these arguments to sanction caste and caste-based distinctions, particularly in matters of marriage. Yet, as Nu'mani's case shows, today at least some Indian 'ulama are willing to critically examine the corpus of medieval fiqh and seek inspiration and guidance directly from the Qur'an and the genuine Prophetic traditions instead, in order to recover the original Islamic vision that is robustly opposed to social hierarchy determined by birth, the very basis of the caste system.
 Mohammad Habib & Afsar 'Umar Salim Khan, The Political Theory of the Delhi Sultanate (Including a translation of Ziauddin Barani's Fatawa-i Jahandari Circa 1358-9 A.D.), p.134.
 Ibid., p.49.
 Ibid., p.49.
 Ibid., p.95.
 Ibid., pp.97-8.
 Ibid., pp.97-8.
 H.N.Ansari, 'Hindustani Musalmano Ki Samaji Darja Bandi', in Ashfaq Husain Ansari, Pasmanda Musalmano Ke Masa'il', Centre of Backward Muslims, Gorakhpur, n.d., p.25)
 'Abdul Hamid Nu'mani, Masla-i Kufw Aur Isha'at-i Islam, New Delhi: Qazi Publications, 2002, p.10.
 Ibid., p.10.
 Ibid., p.4.
 Ibid., pp.6-8.
 Ibid., p.27.
 Ibid., p.27.
 Ibid., p.17.
 Ibid., p.13.
 Ibid., p.17.
 Ibid., p.16.
 Ibid., p.15.
 Ibid., p.16.
 Ibid., p.16.
 Ibid., p.19.
 Ibid., p.25.
 Ibid., p.29.
 Ibid., p.30.
 Ibid., p.22.
 These 'ulama include Mufti Kifayatullah, Sayyed Sulaiman Nadwi and Mufti Yasin, author of the Fatawa-i Ahya- ul-'Ulum (Ibid., p.23).
 Ibid., p.33.
 Ibid., p.36.
 Ibid., p.37.
 Ibid., p.23.
 Ibid., p.39.
 Ibid., p.24.
 Ibid., p.25.
 Ibid., p.20.
 Ibid., p.21.