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I would urge some fair play in this most important of matters. I request our respected Mufti Hussain Kadodia sb to intervene in this matter. How is it that a thread, namely this one http://www.sunniforum.com/forum/showthread.php?102737-Dewsbury-Shariah-Council-Violationsand-our-responsibilities , is closed for perhaps fair reasons and then a moderator (ibnummabd) comes and reopens it just to allow one person (a “col Hardstone”, who was apparently banned previously by SF) to have the last word and not give the other side the chance to come back on what he said. For this to happen in a post that is all about the Islamic justice system is ironical. I agree the subject is very sensitive but it is not right that one side be given an unfair advantage especially when he is so clearly mistaken. Our intention is nothing more than “commanding to good and forbidding evil.”
Please allow my response to be heard with all courtesy. If you then wish to close the thread then so be it, and if you see it right to leave it open then that is better. Col. Hardstone, clearly a follower of Mawlana Yaqub Qawi, would not be the best person to vindicate this council due to his being, as he said himself, very close to them. But let us look at what Col. Hardstone actually said and some of what he said is so serious I would urge you not to ignore it (delete it) as it Shar`an requires correction as it contravenes Shariah principles and is misleading. He said: the Qazi’s ruling is “…above a Fatwa and even transcends differences of opinion of Madhabs and binding and enforceable…” so the laymen can rest assured. This a shocking statement which is tantamount to saying that the Qazi can override his school in fact all Four schools of law. Ie he can issue a verdict outside of the Shariah. Rather, he is bound by the dictates of the Shariah. Let us not forget the Courts of the Ottoman empire, the courts in Pakistan and other Muslim countries had and have judges and they too could easily override the sharia in issues on this basis. However the reason they are unable to is that they are restricted by the confines of the particular school they follow or at the minimum another of the four schools. Secondly, if the Qazi had this freedom Col Hardstone assures us he has, then did not the Muftis of Dar al-Ulum Deoband (and the other madrasas) not know that and so mention it in the Fatwa they issued? Moreover why then did Mawlana Yaqub Qawi himself ask a question on this specific issue to Mufti Taqi Usmani. In Fataawa Usmani VOL.2 P. 457-458, there appears a question from Mawlana Yaqub Qawi in which he asks a total of four questions all around the Shari basis for Faskh. Mufti Taqi sb explicitly tells Mawlana Yaqub that “THERE HAS TO BE SOME MU`TABAR WAJH-E-FASKH (valid basis of dissolution)…” If this Qazi had the power col Hardstone (who is not an alim) ascribes him why need to ask such questions to Mufti sb? Col Hardstone insists, the verdict of Dewsbury Shariah Council is valid even when it flies in the face of the four schools of law. No legal text was cited to back up this strange claim. In fact, on the contrary, if one looked to the texts one would see the opposite: In Rad al-Muhtar it says that the Khalif whose rank is above that of a Qazi: أمر السلطان إنما ينفذ إذا وافق الشرع the order of the Khalif only becomes effective and valid if it accords with the Shariah. For ultimately the Shariah is the criterion to judge whether a judge or a ruler has delivered justice,
not the mere personal opinion of any human being. For example it is well known in Qaza (Islamic Jurisprudence) that if a Qazi knows with absolute certainty (because he witnessed it) that Zayd and Jameela Commited Zina, he is unable to deliver a verdict of Zina as that is not in accord with the Shariah which stipulates four witnesses etc. If he were to give the ruling of Zina, his ruling would BE VOID AND MEANINGLESS. Thus it is no surprise that Ibn alabideen explicitly refutes the erroneous view propounded by Col Hardstone. He (Ibn alAbideen) says that the Qazi is obligated to give the ruling according to the school he follows and IF HE DOES NOT HIS VERDICT WILL NOT BE ENFORCED/VALID. He writes:
٧٩يشرتط لصحة القضاء أن يكون موافقا لرأيه أي لبذهبه جمتهدا كان أو مقلدا فلو قضى خبالفه ال ينفذ- يف رد ج٨ ص احملتار
Thus let us be clear we do not say all DSC rulings are Zina but a significant number have been and this is based on multiple reports, witnesses and speaking to the DSC themselves. Another subterfuge Col Hardstone, then tries to push the fatwas under the rug by picking up on one point in one fatwa and ignoring everything else. There were actually SEVEN questions answered in the Dar al-Ulum Fatwa alone. Relying on a UK court’s decision was just one and as shown by fataawa Usmani was very relevant to the Dewsbury Sharia Council. Col Hardstone, however, suggests that the whole fatwa is about basing a shari ruling on a British court’s decision. And so when according to him (and we should trust him) they do not then the whole fatwa becomes answered. But let us also not forget the more pressing aspects of the Dar al-Ulum Deoband Fatwa which conclusively repudiate the processes of the Dewsbury Sharia Council. For the Benefit of readers here is the translation of the Dar al-Ulum Deoband Fatwa with all the questions of the questioner in brackets:
[Q 1. What are the reasons by which a Nikah can be dissolved according to the pure Shariah?]
A 1. There are several reasons for dissolution of Nikah. For example, the husband’s failing to financially support the wife; impotency; insanity of the husband; the husband’s condition being unknown (ie he disappears without trace); a woman’s having married a non-Kuff and others. Al-
Hilat al-Najiza, the reasons (for dissolution) pertaining to the book of
Dissolution and Separation can be perused there. [Q 2. ] Are the reasons as explained by the Dewsbury council namely, that attempts at reconciliation have been unsuccessful, there being no connection between husband and wife for 6-7 months valid according to the Shariah? months also cannot be made a basis for dissolution.
A 2. These reasons are not valid. There being no relations for six or seven [Q 3. ] Can the Qazi rely upon the decision of a British court and thus give a verdict against the husband? Without having taken a statement from the husband, would the dissolving of a Nikah by the Qazi be valid or not?
A 3. In religious affairs it is not correct for an Islamic Qazi to rely upon a non-Muslim court’s decision. Nor is it right that the Qazi rely merely upon the biased statement of either one of the spouses. [Q 4. When the stipulated reasons for dissolving a Nikah are not found does a Sharia Council have the right to dissolve a Nikah?] A 4. No. [Q 5. In the two scenarios mentioned has the Nikah really been dissolved?] A 5. In both scenarios the decision of dissolution of the Nikah is incorrect.
[Q 6. In the situation that dissolution has not occurred, if a wife contracts a Nikah elsewhere, what will be the ruling of this Nikah?] A 6. That Nikah will not be contracted and it will not be valid. [Q 7. When a council issues such one-sided decisions what is the Sharia` status of this Sharia Council. Moreover if here in the UK a council claims to follow the hanafi school and the elders of Deoband, but becomes so free, issuing such decisions, what will be its status according to the Shariah? A 7. It is defunct and useless. In order to make it useful a good scholar to dissolution. should be appointed who has full knowledge of the fiqhi issues pertaining Habib al-Rahman [Mufti of Dar al-Ulum Deoband]
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