Imrana Ilahi, an ordinary Muslim Indian woman, recently found her name mentioned in countless articles, news dispatches, e-mail messages and angry reports going in all directions.
Many people would love to be famous, and some know how to use such sudden fame to advantage.
But not so Imrana, whose newly acquired fame is for the wrong reasons, and for nothing she had done or contemplated. Poor Imrana has been target of several wrong actions by the wrong people.
To start with, Imrana was the victim of rape by none other than her father-in-law, who, according to news reports, is now in prison awaiting trial. She was, secondly, the victim of a fatwa issued by certain people who ruled that she can no longer remain married to her husband; rather, she should treat him like her own son.
Thirdly, Imrana was further victimized by the local authorities who said that they endorse the fatwa since it has been issued by a recognized institute.
Fourthly, she has been the victim of many self-appointed defenders who took up her case and are trying to bring pressure to bear on her, her family and the authorities to reverse this fatwa. Finally, according to some reports, Imrana has been told to move with her rapist as she can be married to him now instead of his son, her own husband!
In the midst of all this furor, Imrana feels like one in a whirlwind of confusion. After her personal tragedy, her only desire is to continue her simple life, abiding by Islamic teachings and looking after her children.
Needless to say, the case has provided new ammunition to those who are always on the look out for anything to use in order to attack Islam and Muslims.
Looking at a Reported Fatwa
Unfortunately, when the media take up such a case, the truth is often forgotten and we are rarely able to establish the simple facts of the case. In all news agency reports I have seen, very little is written about the basis of the fatwa. A couple of quotations attributed to spokespersons at Dar ul-Uloom at Deoband are often mentioned, but we cannot determine who actually said what. Nevertheless, it is important to make clear the Islamic standpoint on such cases. It is the standard practice of Islamic scholarship that the views of any school of thought should be taken from books written by its own scholars. Thus, if we see a reference to, say, a Hanafi viewpoint in the writings of a highly reputable scholar known for his accuracy and scholarly achievement but is not a Hanafi, we cannot rely on his reporting of the viewpoint and accept it as the standard Hanafi view. We must go back to references and scholars of the Hanafi School and consult them. Only when they confirm the same viewpoint as reported by that scholar can we accept it as a Hanafi view.
Therefore, without having seen the fatwa as issued by Dar ul-Uloom and reviewing its basis and the evidence cited in support of it, I cannot comment on the fatwa itself. What I propose to do is to discuss the reports I have seen, and then I will look at the case of a woman raped by her father-in-law and the effect of such a situation on her marriage.
Basis of the Fatwa
The reports mention that the fatwa is based on the fact that the rape was a conjugal, sexual relation between Imrana and her father-in-law, and this makes it forbidden for her to be married to her husband. The reports quote certain spokespersons as saying that it does not matter that the relationship was by consent or compulsion.
If the reports are accurate, then we say that those who issued the fatwa must have taken as their basis Verse 22 of Surah 4 of the Qur’an, entitled Women, which may be translated as follows: “Do not marry women whom your fathers have previously married, unless it be a thing of the past. Surely, that is an indecent, abominable and evil practice.” (Verse 22.) It has to be said, however, that the Arabic word, nakaha, which is used in the verse for marriage is nowadays more often used in spoken Arabic to refer to sex, rather than marriage, but in official documents it continues to signify marriage. However, Qur’anic statements must be understood and interpreted according to the common usage by native Arabic speakers during the Prophet’s (peace be upon him) lifetime. We know for certain that this word was used in spoken and written Arabic to refer to marriage. In all other instances in the Qur’an, it is only used to mean marriage. Therefore, it must be treated as such, and we say that the verse refers only to marital relations.
Thus, all Muslim schools of thought are unanimous that a man cannot marry his father’s former wife. There is no question about this. Scholars, however, differ as to whether a man can marry a woman with whom his father had committed adultery, but this is not relevant to the present case.
It is also important to look at the above Qur’anic verse and its construction in order to understand its full significance. The word nakahai, or “marry”, is used twice in the verse, but it is used first in the present tense, which in Arabic signifies the present and the future, while it is used in the past tense in the second instance. Thus it prohibits the initiation of marriage with a woman who was previously married to one’s father. In other words, the woman’s relation with the father is over, either because she is divorced or the father has died. In any case she remains unlawful for his son to marry.
Applicability to Imrana’s Case
It cannot be overemphasized that the verse speaks about marital relations, and their initiation. As such, it is totally inapplicable to the case in hand, because Imrana was never in any sort of relation with her father-in-law prior to her marriage. What happened between them came later, after she has been in a valid marital relation with her husband to whom she has given birth to five children. Therefore, there is no question about the validity of her marriage. What we need to discuss is the effect of the rape on such valid marriage, which we will do presently.
Most infuriating is the suggestion carried in news reports that some scholars are saying that Imrana should, or could move with her father-in-law, or may marry him. I seriously doubt that this has been said by any scholar worthy of the name. The Qur’anic verse next to the one we have quoted above gives a list of the women we are not allowed to marry in any circumstances. The list includes: “The wives of your own begotten sons.” (4: 23) These are again totally forbidden for us to marry in any circumstances.
Is it possible that someone who has any knowledge of Islamic family law could suggest that now that the father-in-law has raped Imrana he can marry her? Can it be true that anyone imagines that the crime of rape could nullify a ruling by God, stated in His book, the Qur’an? The Prophet, peace be upon him says that no right can accrue as a result of an offense or wrongdoing. Here it is suggested that a prohibition by God Himself is set aside as a result of such wrongdoing. How absurd!
Effects of the Crime
It is important to clarify the effects of the crime on Imrana’s marriage. Suppose that a married woman commits adultery, out of choice and with no element of coercion. This is, according to Islamic law, a crime of the most grievous nature, and it has a very tough punishment, if proven in accordance with the Islamic stringent proof requirements. But it does not invalidate her marriage. If her husband gets to know of the offense, he can certainly divorce her if he so wishes, but he can also keep her. Indeed, he is encouraged to do so if she has genuinely repented and firmly resolved not to commit the same offense again. This applies when the woman is a willing party to the crime. It applies even more in a situation of rape, when the woman is forced into a situation where she cannot defend herself or protect her honor. In this case, she is blameless and she must not be punished in any way. The Prophet says: “My community are not accountable for anything they do, or omit to do, as a result of a genuine mistake, forgetfulness or coercion.” Rape is perhaps the clearest example of what is done under coercion or compulsion. No woman likes to be forced into such an action. Hence, Islam takes a very serious view of rape and allows a very severe punishment to be inflicted on the rapist, including death, depending on the circumstances. The woman is treated as a victim and cannot be punished, unless it is proven that she had encouraged, or tempted, or otherwise facilitated her own rape.
Could this case of rape bring Imrana’s marriage to an end? The answer is: Definitely not. We have a very clear rule in Islamic law that says that what is forbidden cannot override or nullify what is permissible. This clearly applies here. Marriage is permissible, and in this case Imrana is married to her husband and their relation is recognized as legitimate by Islam, the Indian law and their own community. The rape that has occurred is a forbidden act of which Imrana was the victim. It cannot invalidate her marriage.
What should be done in this case, or indeed in any case of adultery or rape, is that the couple should abstain from sexual intercourse until the woman has had one menstruation period in order to ensure that she is not pregnant, or that if she is pregnant the child’s father is known. After her period, the couple can resume their full marital status. Throughout, she remains married to her husband, enjoying the same rights as every Muslim wife. She should always be treated as blameless.
As for the suggestion that she should now treat her husband as her own son, this is most absurd. I cannot find anything in Islamic law to support this. I can only assume, or indeed hope, that it is a clear mistake of reporting.
