Mohammedan Law

MOHAMMEDAN LAW To Mohammedans much of Mohammedan law is at least as sacred as are the texts of the Shastras to Hindus. The sources of Mohammedan law, its growth and progress, and how it has come to divide into two schools and some sub-schools are set out in the article discussing ISLAMIC LAW (q.v.). For Sunni Muslims the Koran, the traditions (Hddith), the agreement of those who had known the Prophet (or possibly the agreement of the body of the faithful) (Ijmd'a) and analogy (Qiyds) are the sources of law, but the Hanafites use Qiyds more freely than do the others. The school of Shafei has followers in India to an appreciable number, but the vast majority of Indian Sunnis are Hanafites, followers of Malik and Hanbal scarcely existing in the country. There were commentaries or digests well known in India, called the Hiddya and the Fatdwa Alamgiri. A translation of the former by Hamil ton, and Neill Baillie's work based on the latter, were the only books in English to which the courts could resort for guidance on Mohammedan law for some considerable time.

Succession.—The Sunnis and the Shiahs differ widely as to the law of succession, this much being common to both, that the ordinarily bequeathable portion of a person's estate is one-third, the rest going by the law of inheritance. Shiah law will be treated of later, at present our concern is with the Hanafi law of in heritance. There are three primary classes of heirs, who in current usage are loosely spoken of as sharers, residuaries, and distant kindred. Sharers are those who are mentioned in the Koran as entitled to shares. Residuaries are male agnates who are not sharers (some are both sharers and residuaries) and the full and consanguine sisters. Distant kindred are all blood relations neither sharers nor residuaries. Sharers have the first claim on the estate, subject to this, that some sharers are liable to be completely ousted by some residuaries. The shares of some sharers vary according to circumstances. Other sharers, e.g., grandparents, daughters of sons, and sisters, can be excluded by the mere existence of nearer relations. The Prophet almost certainly modi fied the pre-existing Arabian customs by giving a right of inheri tance to many women. The sharers are : husband a or 2, wife or wives or 4, daughter 1, daughters (son's daughter or daughters replacing daughters if there be none), father mother 6 or , full sister 1, full sisters 3 (in their absence consanguine sister 1, con sanguine sisters i), uterine brother or sister *, uterine brcthren , true grandfather a, true grandmother A "true" grandfather is an ancestor in the direct male line, and a "true" grandmother is an ancestress between whom and the deceased there is no "false" grandfather. Thus both actual grandmothers are "true," as are three great-grandmothers and four great-great-grandmothers. "How high soever" and "how low soever" are technical terms of Mohammedan law, "father's father how high soever" being the same as "true grandfather." "Son's son how low soever" means a male agnate descendant. "Child of a son how low soever" means a child of a son or of a male agnate descendant. "Consanguine" means "related through the father only" and "uterine" means "related through the mother only." The share of either spouse is on the lower level if there be a child or child of a son h.l.s. The share of the mother is on the lower scale if there be a child or a child of a son h.l.s., or two or more brothers or sisters. It is also subject to diminution when the heirs are father, mother, and a spouse, in order to give the mother half what the father gets, according to the rule of "double share to the male." A daughter or daughters become "residuaries with their brother or brothers" when there is a son or sons. A son (or son of a son h.l.s. of higher rank than herself), or two daughters, exclude a daughter of a son h.l.s. If there be merely a daughter and a daughter of a son, the former gets and the latter , i.e., . Full sister is excluded as sharer by a child or a child of a son h.l.s. and by father and true grandfather, and, when there is a full brother or brothers who take as residuaries, is residuary with them. Consanguine sister bears much the same relative position to full sister as son's daughter does to daughter. Full sister is not excluded as sharer by consanguine bt other, but, of course, consanguine sister is, though she may be residuary with him. True grandfather is excluded by father, and true grand mother by mother, by nearer true grandmother, or by any heir in the line between her and the deceased. Uterine brethren are excluded by all who exclude full sister from being a sharer.

Residuaries.

If there be sharers who by the application of these rules would get the whole estate, the residuaries get nothing. If the sharers are entitled to take more than exhausts the estate (e.g., wife , two daughters , father mother -4, total -) the shares are diminished proportionately. If there be a surplus and there are residuaries the latter get it, but in such case if there be no residuaries the sharers, other than the spouses, divide it pro portionately.

As noted, residuaries, if there be any, take what is left. They are those who, in addition to ,father and true grandfather, would have had a right of inheritance under pre-Islamic Arabian custom, and in some instances the Prophet gave their sisters a right of inheritance along with them. First come sons, with daughters, each son taking twice as much as each daughter. Then, if there be no sons, sons of sons with daughters of sons, each son of a son taking twice as much as each daughter of a son, there being no division per stirpes. Then agnate great-grandchildren in the same way. A son excludes all grandchildren and a son's son excludes all great-grandchildren. After agnate descendants comes the father. Then the true grandfather, with brothers and sisters. One section of Hanafites allows true grandfather to exclude brothers and sisters entirely. Another brings him in with full (or in default of full with consanguine) brothers and sisters under rules which give the grandfather some advantage in certain cases. Full brother excludes consanguine brothers and sisters. Sisters, full or con sanguine, come in with brothers of their own kind, each brother getting twice the share of each sister. These sisters are the last female residuaries. Then come sons of full brothers, then sons of consanguine brothers, then agnate grandsons of full brothers, and then agnate grandsons of consanguine brothers, and so on to each generation of the descendants of the deceased's father.

The nearer excludes the more remote, and the full blood, other things being equal, is preferred to the half. Similarly with the agnate descendants of the deceased's father's father till they are exhausted, and then similarly with those of the deceased's father's father's father, and so on, as long as any agnates can be traced. Exceptionally full sister or consanguine sister can take as a residuary though she have no brother living. This is when daugh ters have taken the 3 "allotted to women" and the nearest residuaries come later in order than true grandfather, e.g., nephew, uncle, or more distant relations. Then the full sister, or in default of her the consanguine sister, comes in in place of brother. Lack of space forbids discussion of the rules applying to distant kindred. Distribution between them has been elaborately dis cussed by Muslim jurists, even the case being imagined where the heirs are cognate great-great-great-grandchildren, all the links be tween whom and the propositus had pre-deceased him. But de scendants have a preference, and, other things being equal, one who is the child of a possible sharer or of a possible residuary has preference over others.

An infidel, whether by birth or by apostasy, cannot inherit from a Muslim under strict Mohammedan law, but that bar is removed in India by Act XXI. of 185o. Hanafi law forbids a person to inherit from one whom he has killed, even when the killing was by accident or misadventure.

Wills.—Some power of bequest seems always to have been recognized by Mohammedan lawyers, but it extends, ordinarily, only to one-third of the estate as remaining after payment of debts and funeral expenses. But, after the succession has opened, the heirs may validate a bequest or bequests exceeding one-third. A bequest to an "heir," i.e., to one who on the death of the testator happens to be entitled as a sharer or as a residuary, is void unless similarly validated by the other heirs. There are rules about the abatement, proportionately or otherwise, of legacies which between them exceed the disposable one-third. Preference is given to those for pious purposes mentioned in the Koran. Gifts made in what is called "illness of death" are on nearly the same footing as be quests, as are purchases or sales made during such an illness on terms actually intended to confer an advantage on the other party out of the dying person's estate, as, for instance, the sale of property for half its real value. But acknowledgments of a debt in "illness of death" are good, even in the absence of all other evidence of the debt, except when such acknowledgment is in favour of an heir, when it is void. And debts of which there is other evidence have the preference, if the estate is insufficient to meet all.

A will may be in any form, written or oral, and, if written, need not be attested. A Wasi, who is in much the position of an English executor, may be appointed by a testator. In default of there being a Wasi the estate vests at once in the heirs. But, optionally, probate of a will, or letters of administration, or a certificate to collect debts on succession, may be applied for to a court having jurisdiction.

Fictitious Relationship.

Ancient Mohammedan law allowed the creation of fictitious relationship, principally when a tribesman stood surety to his tribe for the behaviour of a refugee from another tribe. This is obsolete in India. Therefore the courts in India do not have to take account of what Muslim lawyers desig nate "the residuary for special cause." But, by custom, Moham medans in many villages in the Punjab can adopt, as Hindus can. And, equally by custom, in the Punjab and elsewhere women are often excluded from succession, contrary to strict Mohammedan law. When slavery existed the acknowledgment by a master of the paternity of a child born to one of his female slaves was a matter carrying considerable legal consequences. Nowadays if the child of a maidservant were so acknowledged the courts might have to consider the legal effects, if any.

Marriage

is essentially a civil contract in Mohammedan law, based upon the consent of the parties, or of those entitled or authorized to represent them. Certain legal results must follow from a marriage, but as to other incidents the parties have some freedom in fixing the terms of the marriage contract. For a minor, i.e., a person under puberty, a "guardian for marriage" is neces sary. The preferable guardian for marriage is the father (or father's father h.h.s.). A marriage at which he is such guardian is final and complete as regards his ward. But when by reason of the death or unavoidable absence of the father or grandfather another guardian for marriage acts, the ward, whether husband or wife, can repudiate the contract on attaining puberty. But once it has been explicitly or implicitly ratified after attaining puberty there can be no repudiation. There can also be an "agent for marriage." He is a person commissioned either to marry for his principal a certain definite person as husband (or wife) or to find and marry for his principal a suitable husband (or wife) . The principal can make the discretion left to the agent as narrow or as wide as he chooses. But to enable the agent to contract with himself or herself, or with his or her ward, as spouse for the principal, direct and unequivocal permission to do so must have been conveyed by the principal. And an agent generally em powered cannot marry a woman client to a social inferior, and cannot render a male client liable for more than suitable dower. But if it be no transgressing of his authority, he can marry his client A, a man, to his client Z, a woman, taking the place of each party in the contract. A marriage must take place in the presence of Muslim witnesses, two men, or one man and two women. The parties must say words by which it is made clear that they agree that a marriage between them is called into being from that moment. And the first speaker's proposal (which may be in the form "I have married thee") must be answered and assented to practically then and there, "at the same meeting" as it is called, by the other party.

Bars to

Marriage.—Marriage is forbidden, on grounds of con sanguinity, with ascendants, descendants, brother and sister and their descendants, and brothers and sisters of ascendants. It is forbidden on grounds of affinity with ascendants and descendants of a present or former spouse, and with any person who has been the spouse of an ascendant or descendant. There can, in some circumstances, be a bar through fosterage. A woman can have only one husband at a time, but a man can have four wives at any one time. So a man's marriage may be void by reason of "unlaw ful conjunction," i.e., because the wife married makes a fifth, or because she is too nearly related to one of his existing wives. For a man may not simultaneously be husband of two women so related to one another, that if one of them was a man they could not marry each other. This does not of necessity prohibit marriage with the second when the first has died or been divorced. A Muslim's wife must be a Muslim or a kitdbia, i.e., a Jewess, or a Christian, or (possibly) a Zoroastrian. A Muslima's husband must be a Muslim. A marriage may be voidable, and not flagrantly void, in which case children born of it before a court pronounces against it are legitimate.

Divorce.

A Mohammedan husband may divorce his wife, or any of his wives, at any time, and he cannot divest himself of this right. The approved method of this divorce, or tdlak, is a pro nouncement of divorce (which, if not repeated, is not immediately effective) followed by abstinence from marital relations for three of the wife's periods. A second and a third pronouncement can be made at suitable intervals. Until either three pronouncements have been made, or the three periods have run out, the divorce is revocable at the husband's option, and he can revoke it (thus wiping out any pronouncement or two pronouncements already made) either explicitly or by renewal of marital relations, and the wife is not entitled to any say in such matter of revocation. But the three pronouncements may be made at any shorter intervals, even in one breath, so to speak, and though this is disapproved, a divorce so made is at once irrevocable, and takes effect when the iddat or three periods has elapsed. The iddat lasts until delivery if there be a pregnancy. The divorced couple are free to marry again when the divorce takes effect, and can re-marry one another, unless the divorce has been triple, in which case such a re-marriage cannot take place unless the wife has in the meantime been the wife of some other man. The check on this power of a husband to divorce his wife is in practice the fact that he generally owes her a good part of her dower, and that that becomes payable to her as soon as the divorce takes effect.

There can also be a divorce by reason of imprecation followed by cessation of marital relations, or by reason of accusation of the wife of adultery by the husband on oath, denied by her on oath. A husband can empower an agent to divorce his wife for him, and can limit the agent's power, e.g., to one pronouncement only, and can make the wife herself such agent. Such power is sometimes exacted by the wife in the marriage contract, for use if the hus band takes a second wife. There can, of course, be divorce by mutual consent on whatever reasonable terms, as to money or otherwise, the parties may agree to.

Dower.—Payment by the husband to the wife of a sum of money, or other lawful and material consideration, as her dower is a necessary feature of a Mohammedan marriage. The dower must not be below a certain small minimum, and either is fixed when the contract is made, or is the "proper" dower appropriate to a woman of the family and social position of the wife. It may be wholly "prompt" or wholly "deferred," or partly the one and partly the other. Prompt dower is payable at once, and the wife may refuse to enter upon marital relations till it is paid, but having entered upon them cannot refuse to continue them because it remains unpaid. Deferred dower is payable at the husband's option at any time during the marriage, and if not paid during it becomes payable on divorce or on the death of either party. It must be remembered, in the case of the wife's death, that though her husband will be one of her heirs, yet her parents, if they survive her, will also be among her heirs, even if she has left children. A wife is legally quite independent of her husband. She can sue him for prompt dower, or for anything else he owes her, and he is not liable for her debts incurred outside her reason able maintenance, or for her torts.

Pre-emption

is not mentioned in the Koran, but this "right to acquire by compulsory purchase, in certain cases, immovable property in preference to all other persons" (as defined in Wilson's Anglo-Mohammedan Law) is undoubtedly a part of Mohammedan law. The possible pre-emptors in order of preference are (a) co-sharers in the property part of which is sold, (b) persons who own a property to which the property sold is servient in respect of an easement, or a property which is jointly dominant with the property sold over some third property in respect of an easement, and (c) owners of contiguous property, unless the estates be large. The pre-emptor is required by Hanafi law to make a demand of pre-emption immediately upon hearing of the sale, and then, without unreasonable delay, to repeat the demand in the presence of two witnesses to the vendor, or to the vendee, or on the property, stating simultaneously that he has made the first demand. By custom a right of pre-emption has attached to sales of immovable property in various districts, towns and villages, and Hindus and others are then subject to it as well as Muslims. The law of pre-emption has been codified into Acts in the Punjab, the North-West Frontier Province, Oudh and Agra. Pre-emption is recognized to prevail in parts of Behar and Gujarat. It is not recognized at all in the greater part of the presidency of Madras.

Schools Other Than That of Hanifa.

Sir W. Markby in contributing to earlier editions of the Encyclopedia Britannica, noted that "Mohammedan law as applied to any Mohamme dans except those of the Hanafite school has as yet been com paratively little studied by modern lawyers." But since he wrote, the writings of French administrators and judges on Maliki law have become available by Major Ruxton's translation for use in Nigeria (Mdliki Law), and Van den Bergh's rendering of Nawawi's Minhd j-ut-Tdlibin, used in the Dutch Indies, has been put into English by Howard, a judge in the Straits Settlements. This last is the standard work of the school of Shafei. Similarly Ameer Ali's work on Mohammedan Law has set out Shiah law in equal fulness with Hanafi law. There are many Shiahs in India, especially in Oudh, though Sunnis very much outnumber them.

Inheritance Under Shiah Law.

The Shiah law of inheri tance differs much from that of the Sunnis. The sharers and their shares are found unaltered, for the Koran prescribes them. But agnates and cognates rank together as heirs, so "residuaries" and "distant kindred" disappear. Apart from husband and wife, the Shiahs arrange all heirs in three classes: (I) parents and descend ants, (2) ancestors, brothers, sisters and descendants of brothers and sisters, and (3) all other relations. Any person in the first class entirely excludes all in the second, and any in the second entirely excludes all in the third. It will be seen that brother and sister are entirely excluded by either parent, or by any descendant agnate or cognate, but under the Hanafite system mothers need not entirely exclude them, and they themselves entirely exclude all descendants of daughters. Also the nearer excludes the more remote, and no one can take between whom and the deceased a living link survives. So a daughter will exclude all descendants of sons or daughters, both male and female. And there is some repre sentation. If the heirs be the descendants of two deceased sons and of two deceased daughters, then 3 is allotted to the children of each son, and to those of each daughter, and distribution is made again on the principle of the double share to each male among each of these four groups of grandchildren of the deceased. If the heirs are great-grandchildren the process is carried a step further. If there are parents and descendants (any descendant, agnate or cognate, diminishing the mother's share under Shiah law), in imagination the sons and daughters who have left de scendants are restored to life, if there be no living sons or daugh ters, in order to see how the distribution is to be made.

With the second class the governing rule (subject to possible exception by reason of a single uterine brother's or sister's share being only a) is -I to the father's side, and 3 to the mother's. And the nearest ancestor ranks with, and as if he or she were, the nearest brother, sister, or descendant of a brother or sister; e.g., mother's father would come in with uterine brother, or uterine brother's son. There is a similar governing rule for the third class. The rule that the nearer excludes the more remote applies always to the second and third classes as well as to the first, and full blood excludes equally near consanguine half-blood. Space does not permit of a full exposition of this interesting scheme of in heritance. If the only persons entitled to inherit (and the rule of exclusion by classes must he remembered) be sharers, and their shares do not exhaust the estate, the surplus is divided . propor tionately among them. But if the shares more than exhaust the estate, then, in the first class, daughters must bear all the loss. Bequests to an heir or heirs, if they come within the disposable third, do not need the consent of the other heirs, and any be quests exceeding the third can be validated by the heirs not only after the inheritance opens, but even in the testator's lifetime.

Shiah Marriage.

The most notable difference between Sunni law and Shiah law in the matter of marriage is that the latter permits temporary marriage. Husband and wife can agree to marry for any time, say for an hour, or for a millenium. If both are alive when the time specified runs out, the marriage then terminates automatically, but it can be renewed by the consent of both. There must be a proper dower when a temporary marriage is entered into. A husband may have as many temporary wives as he chooses. A husband cannot divorce a temporary wife by tdldk, so among people of position "temporary" marriages for i uo years are not unknown, as they secure the wife against the indignity of being divorced. But the husband can virtually terminate the mar riage by making the wife "a gift of the rest of the term." For marriages generally the presence of two witnesses at the making of the contract is not so absolutely necessary as it is with the Sunnis, and possibly among at least some Shiahs something in the nature of a religious ceremony should be added to the civil agree ment. Some Shiahs, it appears, would prohibit the marriage of a Muslim man with any non-Muslim woman, and some would go so far as to prohibit marriages between Shiahs and non-Shiahs, especially when the Shiah party is a woman. But the restriction against the marriage of a Shiah man with a non-Shiah or non Muslim woman does not apply if the marriage is a temporary one.

Shiah Pre-emption.

Shiahs allow no right to pre-empt be cause of vicinage, and regarding easements, allow such a claim only in one complicated and unusual case. And if there are already three or more co-sharers in the property there is no right of pre emption on the ground of co-ownership, at least according to some Shiah sub-schools. The two demands which Sunni law requires are not necessary, for with the Shiahs the pre-emptor must merely make his claim to those interested with due diligence, upon hear ing of the sale.

See M. Nawawi, Minhai et Talibin, trans. from ed. of L. W. C. van den Bergh by E. C. Howard (1914) ; Syed Ameer Ali, Moham medan Law (4th ed. 1917) ; Sir R. K. Wilson, Anglo-Mohammedan Law (5th ed. 1921, rev. by A. A. Yusuf Ali) . (A. SAS.)