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.
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.
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.
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.
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.)