The study above showed that classical traditional thought on rights, roles and responsibilities in a Muslim marriage, the underlying Deoband gender ideology134 and
134 Refer to chapter five section 5.3.2.
the normative view of wifely obedience and subservience as arising out of foundational textual sources135 underpins all mufti responses and petitioners’
perspectives and understandings. While none of the petitioners in the fatwas refer to foundational sources, only one mufti refers to familiar hadith sources.136 Significantly, even when muftis’ answers are framed entirely within the legal parameters of such a marriage, the fatwas generally do not use foundational textual sources to reinforce juristic opinions.
But the Quran is used in the context of sexual agency within Desai’s purview. While the three Quranic verses, which commonly underpin notions of sexual agency in Muslim marriage, as mentioned in chapter two,137 are not mentioned in any of the fatwa’s under scrutiny, Q2: 222-223 is mentioned in other fatwas on the site in the context of detailing permissible sexual positions and proscribing anal sex.138 The preference Desai and his student hold for this interpretation over two other interpretations, which pertain to contraception and undisputed female sexual availability, is further corroborated in a publication on the Darul iftaa website, entitled Etiquettes of Marital Relations (nd: 14):
Intercourse is permissible in any position, from front or rear, so long as anal sex does not take place, for that is haram. The example of the Quran for women is that of a farm; which can be approached from any direction, provided the seeds are planted only in the farm and not elsewhere! Similarly any method of approach is permissible, whether husband is on the wife or vice-versa, or whether they are on their sides or from the rear, whether sleeping flat or whether squatting, all positions are permissible, so long as his "seeds" are planted in the "farm" and not elsewhere.
Further to the lack of Quranic references in the fatwas studied, Docrat buttresses the male sexual needs discourse when dealing with a male petitioners’ concerns of wifely refusal of sex in fatwa C, by using familiar hadith sources.139 His approach accords with Abou Al-Fadl’s assessment that hadith traditions play a greater primary role than the Quran in determinations of spousal obedience. Hadith contribute more to “the
135 Refer to introductory chapter and chapter two section 2.2.
136 Referring to fatwa C analysed in chapter five.
137 Refer to chapter 2, section 2.1
138 See fatwas # 19786 (fatwa W) and # 28610 (fatwa X).
139 Docrat uses familiar authentic hadith. These are explained in chapter five section 5.3.3 and refer to supplicating wives, angry husbands and cursing angels.
general denigration of the moral status of women” and have drastic normative
“theological, moral and social consequences”, requiring a “conscientious pause” 140 for further theorizing and reflection in order to accord better with the Quranic ethos of marriage, which Al-Fadl argues is mutuality, reciprocity and harmony (2001: 94).
Therefore in answering the third research question, no Quranic texts are used in any of the sample fatwas, but other fatwas on the site mention Q2: 222-223 in the context of (im)permissible sexual positions, which does not necessarily overtly prioritise male sexual rights discourses. The only time foundational sources were used in the study was in the form of two familiar hadith, one depicting ‘supplicating wives’ and the other depicting ‘angry husbands’ and ‘cursing angels’. Both are used to buttress the male sexual rights discourse. In instances where muftis chose to instead modulate this discourse with ethical exhortations in an attempt to manage the mismatch between modern marriage expectations and its jurisprudential rules, no similar usage of foundational texts were accessed.141
This omission is significant in light of another study mentioned in chapter two that points to ‘revolutionary reforming trends’ in Desai’s perspectives of domestic abuse, on his site. The fatwa analysed in Kort’s study also precludes foundational sources (2006: 378). Kort argued that Desai promotes “self-accountability, reform and a no- harm approach”, affecting a strong move away from traditional conservative perspectives on domestic abuse. Similarly, and consonant with Kort’s study, it can be argued from this study that reforming trends are also present on askimam.org in relation to sexual agency, through namely the presence of a boisterous discourse on female sexual rights in the form of satisfaction, a modulation of the discourse on male sexual rights, including a tacit tolerance of reciprocal desire,142 and the recognition of non-physical facets of health requiring outside expertise, suggested by the inclusion of sister Fadila.
140 Abou El Fadl (2001: 94) proposes a “faith-based objection” as an option for dealing with a crisis of conscience which arises out of a conflict between one’s personal faith conviction and the determinations of the text (both Quran and Hadith). He proposes a “conscientious pause”, not as a
“whimsical” dismissing of the text, but instead affording a “responsible and reflective” person the opportunity for further reflection and intense investigation of the text, “suspending judgement until such a study is complete”. If the impasse is intractable then, “Islamic theology requires that a person abide by the dictates of his or her conscience”.
141 Desai in fatwa A and Zakariyya Desai in fatwa D.
142 As noted in the analysis in chapter seven of main fatwas A and D and supporting fatwas U and V.
It could also be argued that Desai’s silence when dealing with wives who refuse sex with no “valid” reason, not just in terms of their health or sexual satisfaction, may be regarded too as a revolutionary move. Muftis, in their silence, are perhaps not championing women’s agency, but tacitly tolerating their resistance to one of the most essential dictums of a Muslim marriage - that of male sexual access and female sexual availability.
But I stop short of describing these reforming trends as ‘revolutionary’ for two reasons. First, the persistence of the philosophical underpinnings of the legal logic of marriage characterised by a male-female duality continues to inform muftis in their role as cyber-counsellors, in ways that risk diminishing women’s wholeness and spiritual potential (Shaikh 2004).143 Second, the absence of foundational textual rationales in the fatwas tends to lend less support to reforming trends within them.
Gregory Kozlowski (1996: 247) argues, “fatwas are often significant for what they cannot or will not say, as well as for what they actually communicate”. Thus, I maintain that the oversight in Kort’s analysis is that by ignoring the absence of textual rationales and foundational sources in Desai’s fatwas, she fails to note that hermeneutical trends and philosophical views which permit abuse, continue to persist in his legal logic. This is further salient in light of what the literature earlier revealed,144 that the internalisation of dominant androcentric interpretations of foundational texts often leads to constrained presentations of female Muslim personhood, which in hierarchical, asymmetrical gender relationships could potentially hamper sexual reproductive health rights. Docrat’s response in fatwa C where he supports the male sexual rights discourse using hadith sources is analogous of this inclination. Hence I argue that, in addition to his strong personal denouncement, a judgment of the ‘revolutionary’ potential for reform in a mufti’s fatwa perhaps should also require that the denouncement be strengthened by evidentiary motivations arising out of foundational texts. As an illustration, alternative hadith and Quranic texts which support a modulation of male rights discourses and
143 An example of how this philosophy plays out is illustrated in chapter six, where the idea of reciprocal desire is fraught with contradictions because of tendency of the female sexual rights discourse to emphasise sexual satisfaction as a male duty to protect society from the potentially negative and chaotic female sexuality (Ali 2006: 12).
144 See chapter two sections 2.2 and 2.3.
prioritises discourses of female sexual satisfaction, mutuality and health and well- being exist in the authentic corpus of foundational sources and might be used by muftis to buttress reformist trends in fatwas.