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( Batil and Fasid Marriages )

by

Dr. N. U. A. SIDDIQUI,M .A ., B.C.L. (Oxon.), LL.D. (Trinity College, Dublin),

o f Gray's Inn., Barrister-at-Law,Dean o f the Faculty o f Law,

Dacca University.

First Edition

Published by Iqbal Uddin Ahmad,8, Husaini Dalan Road, Dacca.

Printed by Quorban Khan, b .a .,

Manager, University Press, Ramna, Dacca.

>tuine£ in illu s ( ( n n 3LaUiVol. f.

( Batil and Fasid Marriages )

bv

Dr. N. U. A. S1DDIQUI,M.A . R.C.L. (Oxoii.), LL.D. (Trinity College Dublin),

of Gray's Inn., Barrister-at-Law Dean of the Faculty o f Law

Dacca University.

Author o f

J u d ic ia l O rganisations o f the W orld, Synopsis o f the M uslim

L aw o f Wafcf, Principles o f the Transfer o f P roperty Act. 1882

etc. etc.

Priee Rs. 15.

DEDICATIONThis work is respectfully dedicated,

with his Lordship’s perm ission,

to

T H E H O N O U R A B L E

Mr. J U S T IC E M O H A M M A D M O N IR

the C hief Justice o f Pakistan.

as a h u m b le t r ib u t e to h is s c h o la r s h ip ,

e r u d i t i o n a n d r e p u t a t i o n as ju r i s t ,

a u t h o r a n d ju d g e .

f o r e w a r d

M inister for Law. G overnm ent o f Pakistan.

K arachi.1 9 t h M a y , 1 9 5 3 .

T th ink the students o f Muslim Law owe a deep debt of g ra titude to Dr. N. U. A. Siddiqui for the con tr ibu tion e has m ade to the legal literature of m ankind publishing his scholarly thesis on

Batil and asid marriages in Muslim Law ” Anv- one acquain ted with this branch of legal literature would find that the au tho r has really grappled with the problem , and has dealt with the subject in a very scientific and systematic manner. 1 have no d o u b t but th a t his originality and his power of analysing he subject m atter will deserve due recoe- m tion at (lie hands o f the students o f Muslim Law.

As a Professor o f Law at the Dacca University he au th o r has been teaching law for m any years.’ -te has been able to put his spare time and leisure

to a serviceable use by writing very good books on M oham m adan Law. I hope his example will be followed by o ther Professors o f Law as also the practising lawyers so th a t as a result o f their scholarly researches in the dom ain o f Law, Pakistan is able to m ake an effective and everlasting contribution to the legal literature o f mankind.

( Allah Bukhsh K. Brohi.)

PREFACE to the first edition.

During I95J unci 1952, I had an occasion to attend, as a Technical Advisor, several meetings of the Judiciary Sub-Committee of the Basic Principles Committee set up by the Constituent Assembly of Pakistan for drafting the Constitution of Pakistan. In these meetings, T had the honour and privilege of meeting Sir Abdul Rashid, the First Chief Justice of the Federal Court of Pakistan, who incidentally put me several searching questions regarding the original authority for some rules of the Muslim Law. This gave me an idea.

Then another incident happend. Several passa­ges of Miilla’s Muhammedan Law, especially those relating to Marriage and Divorce, appeared to me to be in direct conflict with the express Quranic texts. I made up my mind to test the correctness of the statements made in those passages. When I began my investigations, 1 never thought that the task would prove so difficult, or that my article (at first I thought it would be just a short article) would expand to this dimension. But once I plunged into the ocean of original texts, I found that the point was not so very short. It raised the funda­mental question of the natnre of the so called fasid

marriages. This was not a mere academic ques­tion It was very much a hve question, ami had ' often come up before courts of Justice. I also found that there was a hopeless conflict ot opinion on this point, not only among various High Courts, but even among judges ot the same High Courts. When my investigations led me to the conclusion that the views expressed in modern texts books were based upon those of Amir Alt and Baillie who had, m their turn, based theirs upon a passage found ,n Fatawae Alaingiri where it was quoted from an ancient text Moheet, naturally, my c o u r a g e at first, failed me, and 1 dared not dispute the validity a rule of law which had the support of such high authorities. But since T found no explanation for the direct conflict between these views and the express words of the Quranic verses, 1 continued my investigations and the result is this little volume. Of course,, do not claim infallibility, t can not say that my views are correct. My main object is to bring to the limelight this all-important point of Muslim Law and to enable those who arc well-versed in Muslim Law, to form their own opinion, upon a full consideration of all the relevant texts and authorities. 1 am sure our Supreme Court will, sooner or later, be called upon to decide this ques­tion which, strangely enough, never went up to the Privy Council, with the result that the various Indian High Courts have given conflicting decisions. The decision of our Supreme Couit will settle the

law for Pakistan, and 1 hope that it will arrive at a correct decision. Muslim Law permits the deci­sion of a point of law by Ijma. Ijma means the concensus of opinions of the learned, on any point. In Pakistan, decisions of the Supreme Court must be given the binding force of Ijma.

This is not the solitary question of its kind. There are other rules of Muslim Law which have been buried deep into the land of oblivion, but which, from their inherent utilitarian values, deserve an early resuscitation. In subsequent volumes, 1 intend to raise and discuss them with reference to original authorities.

If, as a result o f my labour, a general interest is created in this question and a serious attempt is UYddc to iftYCSUg’Ate the correctness of either of the two views on Batil and Fasid Marriages, and the correct one is adopted in Pakistan, I shall consider myself well-rewarded.

As A m ir Ali and Baillie are the great exponents o f the view which has been adopted by subsequent writers and which has been accepted by courts of justice in India, since 1875, I have discussed these two authors at, what may appear to be, an inordi­nate length. I have quoted from them extensively, with a view to analyse their statements and point ou t their contradictions and want of logic. I have, always, given full references to pages. These references relate to “ M o h a m m e d a n Law” by Amir Ali, Vol. II, (4th Ed.), 1917, and to “A Digest of M oham m edan Law ” by Baillie. Part F irst (2nd Ed.).

It is my pleasant duty to express my deep gratitude to Mr. Justice Amir Uddin Ahmad, Chief Justice and Acting Governor of East Pakistan, to Mr. Justice Amin Ahmad, Acting Chief Justice, and Mr. Justice Hamood-ur-Rahman, judge, of the Dacca Court. Their encouragement, suggestions and discussions have sustained me in my efforts and have been of invaluable assistance to me in the completion of this work. Mr. Justice Hamood- ur-Rahman also helped me by lending me some of the rare books on Muslim Law, from his own private collection.

I am also grateful to Dr. W. A. Jenkins, the Vice-Chancellor of the Dacca University for permit­ting the book to be printed in the Dacca University Press, to Mr. A. H. Taluqdar, the Registrar, and Mr. Akbaruddin Ahmad, the Assistant Registrar of the Dacca University for getting the book printed under the most abnormal circumstances.

Owing to certain unavoidable reasons, some printing mistakes are to be found in the book for which I apologise. As far as I could detect them, I have pointed them out in the errata. There may be some more mistakes left unnoticed. I shall be grateful if they are brought to my notice for correc­tion in the second edition. All suggestions for the improvement of the book or for the treatment of subject, as well as, all criticisms of my views expressed in the book, will be gratefully received and acknowledged.

June 30, 1955. N. U. A. Siddiqui

T A B L E o r C O N T E N T S

D ed ication

F orew ord

PrefaceT a b le o f C o n te n ts ... . .. v— x

T a b le o f C ases ... ... x i— xii

Errata ... ... ... xiii— xv

B ib liography . . . . . . . . . xv i— xviii

P R E A M B L ES e c t i o n I.

Sexual C o-hab ita t ion and N atura l Instincts ... 1-3

S e c t i o n IT.

M u slim C on cep t o f M arriage ... . . . 4-9N ik a h — its defin itions p. 4— H adis p. 5-6—Q u r a n i c verses pp. 6-9.

S e c t i o n III.

T h e T erm in o logy o f the Quran ... ... 10-13

S e c t i o n IV.

T h e W o m e n P roh ib ited in M arriage 14-20P rohib ited w o m en p. 14— Their groupings—Ibn A b b a s p. 14— K azi K han p. 15-16— D ur- u l-M u k h tar p. 16— R udd-ul-M uhtar p. 16-17 F a ta w a e A lam giri pp. 17-18— W ilson p. 18—A bdul R ah m an p. 19— M u lla p. 19.

Page

i—i>

S e c t io n V.

Baillie

His works p. 20— Its criticism by A m ir Ali pp. 21-22— Baillie’s line o f argum ent p. 22—Its criticism pp. 22-28— Zina p. 28-29— where there will be hudd p. 2 9 -30— W h ere o n ly on e party will suffer hudd p. 30-31— Further analysis o f Baillie’s o p in io n p p .31-35.

S e c t io n VI.

Syed Amir Ali

H is c lassification o f causes o f prohibition p. 37-38— E num eration o f prohibited w om en p. 39-41— T em porarily prohibited w om en p. 40-41— M arriage o f Zani and Zania p.41-2

S e c t io n VII.

A b u H anifa and his disciples

Conflict o f op in ion between H anifa and Shafei p. 42— List and dates o f Sunni Im am s p. 44.

S e c t i o n VIII.

Z ina

Its definitions by K azi K han p. 46 — H ed aya p. 46— P unishm ent for Z ina pp. 46 , 48-49— W h en no hudd awarded p. 47-48.

S e c t i o n IX .

T h e D octr ine o f Shubh

Severity o f hudd caused its ev o lu t ion p. 49 — W h en there w ou ld be no hudd p. 50— Shia L aw d oes n o t recognise fasid mirriages p. 51— D iv is io n o f Shubh pp. 52— Shubh-i-Ishtibah or S hub-F il-F a il pp. 52-55— It can b e p leaded

P age

20-35

36-42

42-45

46-49

49-67

Page

in 8 cases o n ly p. 53— C o n seq u en ces o f this S h u b h p. 54— S h u b h -e -H u k m ia h or Shub- F il-M a h a l p. 5 5 -58— Is it lim ited to six cases p. 5 5 -5 6 — P ro p h ets ’ say in g p. 57 — S h u b -F il-A q d pp. 58— A b u Y u su f , M o h a m m a d and Sliafei pp. 6 0 -62— Bahur, p. 6 4 — K a s h f p. 64— T aw zih T ahvih pp. 6 4 -6 5 — Criticism o f A b u H a n ifa ’s view s p. 65-67.

S k c t io n X.

E v o lu t io n o f the C o n c e p t io n o f Fasid M arriage 67-72

Early jurists m a k e no d istinction betw een batil and fasid p. 68 -69— In trod u ction o f the class o f fasid m arriages p. 71-72.

S f .c t io n XI.

Classif ication o f Prohib ited W o m e n ... . . . 7 3 j

C lassif ication o f proh ib it ions p. 73— Effects o f a m arriage w ith a perm anently prohibited w o m a n pp. 7 4 -75— T em p orarily prohibitedw o m e n p. 7 5 — W h en can the latter b e law ­fully m arried pp. 75-78— H o w ancient texts h a v e d iscussed cases o f proh ib it ion p. 78-79—P o ss ib le origin o f fasid m arriages pp. 82-83—C hild o f fo rn ica t io n can not be legitimised p. 8 7 -88— A n uncertain future event cannot alter present legal p osit ion , illustrations p .84-90

C H A P T E R 1.

Conjunctions o f two sisters in marriage 91— 196

T exts— Q uran p. 91, H adis p. 91, Tafsir K abir p. 91-99;H ed aya and K ifaya 99 -104; Q azi K h a n 104-107; Dur-ru l-M u k h tar 107-109, 112; R u d d -u l-M u h tar p. 111-117;T a h ta w i p. 117-118; R u d d -u l-M u h tar 118-123; Ibne A rabip. 123-125; K an z p. 125; K ifaya p- 125; V iq a y a p. 125,

Sharhe Viqaya p. 126; Inaya p. 126-127, Aynee p. 127, Fath-ul-Qadir p. 127-128; Zakhir-at-ul-Uqba p. 128, Jamai-ur-Rumuz or Kohistani p. 128-129; Fatawae Alamgiri p. 129-137; Macnaghten p. 138, Wilson p. 138, Abdul Rahman p. 138-139, Abdul Rahim 139, Saksena p. 139, Amir Ali p. 140-142— Summary o f Texts p. 142- 143; Case Law p. 142-162— Fatawae Alamgiri p. 163-165, Mohit p. 165-171, Amir Ali p. 171-187— Contradictions in Amir Ali p. 173-180— Biological and legal paternity p. 180-182— Summary o f Chapter p. 187-196.

C H A PT E R 11

Unlawful Conjunction pp. 197-199

Definition 197— Wliat relationships produce unlawful Conjunction : Qazi Khan p. 197-198; Hedaya p. 199.

CH A PTER III

Mushrikat pp. 200— 226.

Quranic verses pp. 200-1— Their interpretations 201-4— Hedaya p. 205— Kazi Khan p. 205— Fatawae Alamgiri p. 205— Macnaghten p. 205— Ibn Abu Zaid pp. 2 0 5 -6 - Abdul Rahman p. 207— Wilson pp. 206-7— Baillie pp. 207-8— Criticism o f Baiilie 207-213— Md. Y usuf p. 213- 215— Mulla pp. 216— Amir Ali pp. 216—222— Rudd-ul- Muhtar pp. 219-221. Case-law pp. 222-225— Whether the prohibition is political or spiritual pp. 225-6.

CH APTER IV

Marrying more than four wives, pp. 227-236.

Quranic verse p. 227— Imam Razi p. 227— Hedaya pp.227-8— Kifaya, p. 228 Qazi Khan p. 228— Md, Y u su f pp.228-9— Fatawae Alamgiri, p. 229, Macnaghten p. 229- 230—Wilson p. 230—Baillie pp. 230-31— Abdul Rahman p. 231— Mulla p. 232— Amir Ali pp. 232-236.

C H A P T E R V

M a r r i a g e w i th o u t w i tn e s s e s p p . 2 3 7 - 2 5 0

Q u r a n P- 2 3 7 ’ P r o P h e t ’s say in g p. 237— H ed a y a p. 238— Q a z i K h a n pp. 2 3 8 -9 — D u r - r u l - M u k h t a r p .2 3 9 , ' R u d d - u l - M u h t a r Q u ra n ic verses 2.39.1 a n d 2, p. 240 —B a i l l i e PP' ^40-2 C ritic ism o f B a i l l i e pp. 2 4 2 -6 — A m i r A l i P- 2 46 -7 M u 11a 247-8— M acn agh ten p. 248—W i l s o n P- 2 4 8 -9 — A b d u l R a h m a n p. 249 — Saksena |5 2 4 9 -— S u m m e r y p. 250.

C H A P T E R VI

M arried W om en pp. 2 5 1 -2 6 1 .

Q u r a n i c v e r s e s p. 2 5 1 — I m a m R a z i p. 251— Q a z i K h a n pp. 2 5 1 -2 — R u d d - u l - M u h t a r pp. 252-3— F a t a w a e A l a m g i r i p. 2 5 3 — A m i r A l i pp. 2 5 3 -4 — B a i l l i e p. 254 , W i l s o n p. 254, A b d u l R a h m a n , p. 2 5 4 — M u l l a pp. 254-5 — M a c n a g h t e n 255 , 2 5 6 — H e d a y a p. 2 5 6 — S h a r h e V i q a y a p. 2 5 6 --C a s e - l a w 255 61.

C H A P T E R V II

iVlutallaqa pp. 262-84

D e f i n i t i o n p. 2 6 2 — Q u r a n i c v e r s e s p p . 262-4— H e d a y a p p . 2 6 4 -5 — F a t a w a e A l a m g i r i p p . 265 — B a i l l i e p p . 266 -7 — A m i r A l i p . 26 7 , M u l l a p . 267 — W i l s o n p p . 267-8 — A b d u l R a h m a n p p - 2 6 8 -9 — C a s e - l a w p p . 269-74— S u m m a r y o f Q u r a n i c i n j u n c t i o n s p p . 274 -79 — M o h u l l i l a n d M o h l i l l a h o o p . 2 7 8 — C o m p a r i s i o n o f a m a r r ie d w o m a n a n d a t h r i c e - d i v o r c e d w i f e p p . 279-284.

C H A P T E R V I I I

U n law fu lness arisin g from Pregnancy pp. 285— 288

M a y a r i s e in t h r e e w a y s p. 285— Q a z i K h a n pp. 285-6— H e d a y a p. 2 8 6 — B a i l l i e pp. 286-7— R u d d - u l - M n h t a r p. 2 8 7 — A m i r A l i pp. 287-8 .

C H A P T E R IX

M arriage during Iddat. pp. 289— 339

Marriage with a wom an who is herself in iddat p. 2 8 9 - 3 2 4 Quranic verses pp. 289-294— Various periods o f iddat pp. 294-300— Iddat on divorce pp. 294-5— O f w idow p. 295-7 Khilwat-e-Sahiha p. 297— Iddat o f a pregnant w om an p. 297-300— Marriage with a m o ’aUadah pp. 3 00 -!6 Case-law 316-19— Marriage not to be proposed to a m o’attada 321— Further arguments aganist a marriage with a m o ’aUadah 321-2— Quranic verse can only be repealed by another Quranic verse pp. 323-4. Prohibition on marriage o f one w om an during iddat o f another woman pp. 324-39— N o t m entioned in Quran or Hadis p. 324— Shafei disagrees pp. 324-6— Further arguments against Hanafi view pp. 326-39— Marriage and liabutity to pay maintenance not inter-dependent, p. 326-331 — Why w idow gets no m aintenance during iddat 328-9— Hindu Law o f marriage p. 333— Period o f waiting when husband is untraceable p. 338-9— C onclusion p. 340.

Index

TABLE O F C A SE S

Page

33

217,222

152

4. Aiz-un-nisa v Karim-un-nisa. l .L .R . 23 Cal 130 21-2,145-49

5. Akhtaroon-nessa v Shariutoolah. Suth. W .R.Vol. VII 268 (Civil) ... ... ... 271-4

6. Ata M oham m ad Cliowdliry r Saiqul Bibi (1910)7.I.C.820 ... ... ... 50,53,159,256

7. Budansa Rowther i> Fatima Bibi, 22. I.C. 697 ...

8. Farzand Husain’s Case. I.L.R. 4 Cal. 588

9. G overnm ent o f Bombay v Ganga. I.L.R. 4

Bom. 330

10. Hammad v K..E. A.l.R. 1931. Lah. 194.

11. Ihsan Hasan Khan v Panna Lai A.l.R. 1928Pat. 19.

12. In the matter of Ram Kumari. I.L.R. 18 Cal. 264

13. Jhandu v Hussaini Begum. I.L.R. 4. Lah. 192

•4. Khatoon v Abdullah Khan, A.l.R. 1937 Lah. 270

*5. Liaqat Ali v Karim-un-nissa. I.L.R. 15. All. 396

224,257

271

223,260

260-1

225

223,259

317-9

269

1. Abdul Qadir v Salima. I .L .R .8 All. 148

2. Abdul Razzak v Aga M oham m ad Jaffer Binda- min L.R. 21. I.A. 56

3. Aga M oham m ad Jalfcr Bindamin v K oolsoom Bibi, I .L.R. 25. Cal 9 (P.C.)

271

85

316

249

S9-6U

316

224

215

69-71

114

194

150-9

160-2

M am m i v Kalandar Ammal. L.R. 54. l.A . 61

M ohori Bibi v Dliurmodas. L.R. 30. I.A. 114

Mst. Bakht Bibi v Qaim Din. A .I .R . 1934

Lah. 907.

Mst. Butoolun v Mst. K oo lsoom . 25 .W .R . 444 ...

Mst. Kaniza i’ Hasan A hm ad Khan. A .I .R . 1926 Qudh 230.

Mst. Ruro V Bagh Singh. A .I .R . 1935. Lah. 23 ...

Mst. Saidan v Sharaf. A .I .R . 1937 Lah. 759.

Narantakath Avullah v Parakhal Mamrnu A .I .R . 1923 Mad. 171.

Rashid A hm ad v Anisa K hatoon . L.R. 59. l .A . 21.

Shareefunnisa v Khajurunnisa K hanum3. S .D .A . Sel. Rep. 210

Syed Muzaffer AM v Qamr-un-nisa Bibi. Suth. W .R . supp. Vol. 32.

Tajbi v M ow la Khan. I.L.R. 41. Bom. 485

Taliamand r M oham m ad D in. I.L.R. 12 Lah. 52.

ERRATA

Page. Line.

P. 1, 1. 4, for Sahib read sahih.P 2, 1. 28, for findloose read find loose.

P 7, I. 26, for untill read until.

P. 8, 1. 5, for untill read until.

P. 11, 1. 16, for a r read are.

P. 12, 1. 9-10 for untill read until.

P. 14, I. 19, Vol. Iquotes read Vol. 1, quotes.

P. 15, 1. 10, fosterage (the rule) read fosterage, the rule.

P. 16, 1- 9, substitute com m as in place o f full stops after words them and other.

P. 16, 1. 26, for Ruddul-Mudlitar read Rudd-ul-Muhtar.

P. 17, 1. 3, for purposes read purpose.

P 17, 1. 5. for siters read sisters.

P. 18, 1. 14, for in read which contains.

P. 23, 1. 11, for Marriage read marriage.

P. 23, 1. 16, for misconception read misconceptions.

P. 24, 1. 8-9, for Muharram at read Muharramat.

P. 25, 1. 5-6, for prohibit ed read prohibuted.

P. 26, 1. 5, for name read term.

P. 26, 1. 7, delete the word in.

P. 26, 1. 9, for ward read word.

P. 26, 1. 9, for to the read only to.

P. 28, I. 6-7, for non-legitim acy read illegitimacy.

P 29, 1. 21, for M am ilton read Ham ilton.P. 29, 1. 23, for vanina read vagina.

Page. L ine.

P. 31, 1. 28, for Alamgiri read Fatawae Alamgiri.

P. 32, 1. 12, for eveident read evident.

P. 33, 1. 5, for all read All.

P. 39, 1. 2, delete the word the.

P. 39, 1. 27, for gorup read group.

P. 50, 1. 2, for untill read until.

P. 52, 1. 2, for circumstance read circumstances.

P. 72, 1. 1, for read

P. 85, I. 12, for Bhurmodas read D hurm odas.

P. 86, 1. 12, for untill read until.

P. 93, 1. 26, for seperate read separate.

P. 93, 1. 28, for seperated read separated.

P. 96, 1. 3, for seperate read separate.

P. 101, 1. 17, for ungatory read nugatory.

P. 101, 1. 21 for conctracted read contracted.

P. 120, 1. 17, for shuhb read shubh.

P. 126, 1. 4, for obligations read obligation.

P. 142, 1. 27-28, for authorit es read authorities.

P. 149, 1. 18, for to read for.

P. 151, 1. 4, for outweigh read outweighed.

P. 158, 1. 27, for the read he.

P. 163, 1. 9, delete mediately and co m m a s before and after it.

P. 176, 1. 10, for form ations read form ation.

P. 183, 1. 1, for structure read structure.

P. 203 , 1. 26, for com m inicties read com m unities .

P. 204, 1. 28, for certainly read certainty.

P. 205, 1. 15, for Alamgire read Alamgiri.

P. 209, 1. 23, for catagories read categories.

p. 224, I. 3, Delete In.

p. 226, 1. 6, delete the after If.

p. 252, 1. 7, for has to observe read has not to observe.

p. 257, 1. 10, for non-excusat read non excusat.

p. 263, 1. 5, Add it after N or is.

p. 276, 1. 1, for read 1 = 0 ^ 1

p. 278, 1. for vie read viz.

p. 278, 1. 13, for for Mukhtar read Muhtar.

p. to CO VO 11-12, for these three cases in this very order read the first two cases which alone are important.

p. 290, I. 22, for them so read them: so.

p . 293, 1. 11, for reason are read reason, are.

p. 299, 1. 14, for Russel read Russell.

p . 320, 1. 14, for if read it.

p . 337, 1. 17, for be neither read neither be.

Arabic.

1. Ahkam-ul-Quran by Abu Bakr M oham m ad bin A bdullaknown as Ibn Arabi o f M orocco .

2. Aynee, a Commentary o f Kanz-ud-Daqaiq and H ed ayaby Quzi-ul-Quzzat Badruddin M ahm ud bin A h m ad 855 A. H. 1446 A .D .

3. A1 Buhr-u-Raiq, a Commentary o f K anz-ud-D aqaiqby Imam Zain-uddin bin Najim o f Egypt. 970 A .H .

4. Anqarvi or Fatawae A1 Anqarvi by Sheikh M o h a m m a dbin Hashani 1098 A .H.

5. Bakurat-us-Sad by Ibn Abu Zaid.

6. Dur-rul-Mukhtar by M oham m ad Ala-uddin A l-H iskafi.

7. Fatawae Alamgiri by Shaikh N izam and others 1660A .D . Note.Uts Urdu translation is known as F ataw ae Hindiah. It has been translated by Ehtisham U d d in )

8. Fatawae Qazi Khan by Qazi K han Abul M afakhirFakhruddin Hasan bin Mansur Auzjandi 592 A .H , 1190 A .D .

9. Fath-ul-Qadir by Kamal Uddin M oham m ad bin A bdulWahid-al-Siwasi. 1456 A .D .

10. Hedaya by Burhan Uddin Ali bin Abu Barakat M ar-ghinani. 1190 A .D .

11. Inaya by Akmal Uddin bin M ahmud 1384 A .D .

12. Jamai Qazi Khan by Qazi Khan Abul M afakhirFakhruddin Hasan bin Mansur Auzjandi 592 A .H .

13. j a m a i - u r - R u m u z , a s h o r t c o m m e n t a r y o n H e d a y a k n o w na lso as K o h is ta n i by Sham s U d d in ^ K o h is ta n i 1534

A .D .

14. K .an z-u d-D aq aiq by A b u l Barakat A b d u lla Bin A h m a d -u l-N a sa f i . 1300 A .D .

15. K ash af-u l-A srar , a co m m en ta ry on U su i Fakrul IslamB a z d a v i b y A b d u l A z iz o f B o k h a r a , a b o u t 482 A .H .

16. K i f a y a , a c o m m e n t a r y o n H e d a y a b y M o h m u d b i nU b a id U lla h bin M ah m u d . 1346 A .D .

17. K ita b -u l-M a b su t (in 30 V o l.) by Sham s U dd in Sarkhassi.18. L u b ab , a c o m m en ta ry on H edaya by Shaikh R ahm at

U l l a h . S i n d h i .

19. M a jm a -u l-A n h a r , a com m en tary on M ultaq il A bhar byA b d u l R a h m a n bin Shaikh M o h a m m a d bin S u la im an 1077 A .H ,

20. M o h it by S h am s U d d in Sarkhassi.

21. R u d d u l M u h ta r by M o h a m m a d A m in bin A bid in .

22. S h arh -e-V iq aya , a com m en tary on V iq aya by U baidU llah bin M a s o o d i 1349 A .D .

23. T a h t a w i , a c o m m e n t a r y o n D u r r - u l - M u k h t a r b y S y e dA h m a d -A l-T a h ta w i 1243 A .H . 1839 A .D .

24. T a lw ih , a co m m en ta ry on T auzih by Sa’ad U dd in M asu dbin U m a r T aftazan i 791 A .H .

25. T au z ih by Sadrus-Shariah, 8th Century A .H .

26. T afsir-e-K abir by A b u Bakr F a k h U ddin Razi.

27 . V iq aya t-u r-R aw aya b y Im am Burhan-us-Shariah1349 A .D .

28. Z ak h ira t-u l-U rb a , a lso k n o w n as A k h i C halpi, a c o m ­m entary o n Sharhe V iqaya by Y u s u f bin .Tunaid T u q ani 905 A .H . 1496A .D ,

English

1. Abdul Rahmim, Sir, M uham m adens Jurisprudence.

2. Abdul Rahman, Institutes o f M ussalman Law.

3. Amir Ali, Syed, M ahommedan Law.

4. Hamilton, Charles, Hedaya.

5. Macnaghten, Sir, W .F. Principles and Precedents o fM oohummudan Law.

6. M ahomed Y usoof, Mahornmedan Law (T.L.L.).

7. M ohammad Ullah Ibn S. Jang, A Dissertation intoMuslim Law o f Marriage.

8. Russell and Suhrawardy, First Step in Musliim Juris­prudence.

9. Saksena, K.P., M uslim Law as administered in BritishIndia.

10. Tyabji, Faiz Badruddin, Principles o f M uham m adanLaw.

11. Wilson, Sir Roland Bart. A nglo-M uham m edan Law.

P R E A M B L ES E C T IO N I.

S ex u a l C o-hab itation and N atural Instincts.

“ N o p a r t o f th e M u s s a lm a n L a w ,” say s S yed A m i r A li , “ is m o r e d if f icu lt to c o m p r e h e n d th a n th e ru le s t h a t r e la te to c o n n e c t io n s w h ic h , a l th o u g h n o t r e g a r d e d as q u i t e v a l id ( S a h i b ) give rise , o n c o n s u m m a t i o n , to s o m e o f th e c o n s e q u e n c e s r e s u l t ­in g f r o m a v a l id m a r r i a g e ” ( p .376).

H o w a n d w h e n th e s e c o m p le x i t ie s c r e p t in a n d w h a t a g e n c ie s a r e r e s p o n s ib le fo r th e i r in t r o d u c t io n in t o th e M u s l im L a w , w ill b e d is c u sse d la te r o n a t t h e i r a p p r o p r i a t e p la c e s . S in ce w e a re to d iscu ss t h e p o in t s o f d i f fe re n c e b e tw e e n fas id a n d ba ti l m a r r i a g e s a c c o r d i n g to th e M u s l im L a w , it w ill n o t b e i n a p p r o p r i a t e to d is c u ss , in th e f irs t in s ta n c e , th e b a s ic c o n c e p t i o n o f M a r r i a g e in M u s l im L aw , a n d to d e te r m i n e th e so c io - re l ig io u s c h a r a c t e r g iv e n to i t b y th e S h a r i a t . S a t i s f a c t io n o f sex u a l in s t in c t is a b io lo g ic a l n ecess ity . Tt is a c a l l o f n a tu r e . N o t o n ly h u m a n b e in g s , b u t lo w e r a n im a ls a ls o feel th e im p u ls e f o r if. N a t u r e i t s e l f h a s la id d o w n c e r ta in ru le s f o r th e s a t is f a c t io n o f th is c rav in g . E v e n th e lo w e r a n im a ls u n i fo rm ly , t h o u g h u n c o n s ­c io u s ly o b s e rv e c e r t a in ru le s in g ra in e d in th e i r n a t u r e e .g . th e y w ill m a t e o n ly (1) a t p a r t i c u l a r s e a s o n s , (2) w i th a n im a ls o f th e i r o w n spec ies (w ith

rare exceptions e.g. a he-ass mating with a mare),(3) between particular ages, and (4) most important of all, for our purposes, never with their own mothers (with the single exception, perhaps, of a pig). In the case of these irrational animals, nature itself regula­tes the mode of their mating. In the case of human beings, who are called rational animals, nature does not take upon itself, this responsibility. Human beings have been given discretion and power to regulate their own conduct. Nature intervenes only so far as it visits with evil consequences, any contravention of its rules.

We find that the History of Mankind is really the History of its progress. Man (here 1 am using the word to denote the species, mankind) has advanced stage by stage, ethnologically, physically and socially. Like his progress in other spheres of life, his views on sexual relations and his mode of satisfying this cardinal natural instinct have also passed through various stages. Anthropology confronts us, even in our present day world, with widely divergent customs of marriage which are observed by various groups of human beings which are at various stages of human progress and civili­sation. Even now we find group marriages, matriarchal system and polyandry prevailing among the so-called backward races; whilst, among the so-called civilised communities, we findloose forms of marriages, free love and a greater and greater inclination to satisfy carnal desires without any restriction of any kind—legal, moral,

s o c ia l o r r e l ig io u s . E v e n in th e I s la m ic S ta te o f a k i s t a n , th e r e is n o p ro v is io n in th e C r im in a l a w , d e c l a r in g il lega l a s e x u a l c o - h a b i t a t i o n w i th o u t

m a t r i m o n i a l ties . L a w m a y n o t p u n is h , b u t N a tu r e d o e s n o t fo r g iv e s u c h a c ts . T h e g r a d u a l e x t in c t io n ° f th e a b o r i g in e s p r a c t i s in g c u s to m s o f g r o u p m a r r i ­a g e s , m a t r i a r c h a l s y s te m a n d p o ly a n d r y , th e fa l l in g b i i t h r a t e in s o m e o f th e m o r e a d v a n c e d E u r o p e a n C o u n t r i e s , l ik e F r a n c e , w i th o u t a n y o s te n s ib le c a u s e a n d in s p i te o f a ll S ta t e e f fo r ts to in c re a s e th e b ir th r a te , th e v a r i o u s f o r m s o f d ise a se s a n d in f irm it ie s r e s u l t in g f r o m a v io la t io n o f th e N a t u r e ’s C o d e ° f c o n d u c t a re , in fa c t , i ts re v e n g e a n d p u n is h m e n t s f r o m w h ic h th e d e l i n q u e n t c a n n o t e scap e . Is lam c a l im s to b e a re l ig io n w h ic h te a c h e s m a n k i n d to a t t a i n p e r f e c t io n , b o t h s p r i tu a l a n d te m p o ra l , by • e g u la t in g h is c o n d u c t a c c o r d in g to th e in v io la b le C o d e o f N a t u r e . It t a k e s c o g n is a n c e o f H u m a n N a t u r e . A s a n e c e s s a ry c o r o l la r y to th is fa c t , i t d o e s n o t f o r b id o r d i s c o u r a g e m a t r im o n y , o r , w h a t is t h e s a m e th in g , e x to l c e l ib a c y b y p re s c r ib in g it a s a s u r e r m e a n s o f a t t a in i n g p e r fe c t io n , o r , o f g e t t ­in g s a lv a t io n , t h a n m a t r im o n y . T h e H is to r y o f th e R o m a n C a th o l i c C h u r c h , a p e e p in to th e in s id e o f s o m e o f th e a b b a c ie s a n d n u n n e r ie s in M e d ia e v a l E u r o p e , a g l im p s e in to th e c o n d i t io n s p rev a i l in g , e v e n to d a y , in s o m e H i n d u M a th s a n d th e u t t e r m o r a l d e g r a d a t io n o f th e D a s s is w h o w ere a t t a c h e d to th e H i n d u te m p le s in S o u th I n d i a a re th e b e s t p ro o f s o f t h e in h e r e n t s o u n d n e s s o f I s la m ’s c o n c e p t io n o f m a r r ia g e .

SECTION IL

Muslim Concept o f Marriage.

Muslim Jurists have not a ttem pted to give a precise definition of marriage. H edaya merely says “ N ikkh , in its primitive sense, means carna l Conjunction. Some have said that it signifies conjunction generally. In the language o f law, it implies a particular contract used for the pu rpose o f legalizing generation” H am ilton Vol. I p. 71.

Baillie has given a definition taken partly from kanz and partly from Kifayah. He says :

“ M arriage is a contract which has for its design or object the right o f enjoym ent, and the p ro crea ­tion o f children. But it was also instituted for the solace of life, and is one o f the prime or original necessities o f m an” p. 4.

Macnaghten defines it as “ a contract founded on the intention o f legalising genera tion” p. 56.

Syed Amir Ali quotes “ A sh ah ” as follows :“ Marriage is an institution ordained for the

protection of society, and in order th a t hum an beings m ay guard themselves from foulness and u nchas tity” Vol. II p. 315.

Wilson defines it “ as a contract tor the pu rpose o f legalising sexual intercourse and the p rocrea tion of children” p. 98.

Now, w ithout attem pting any com prehensive definition, let us examine its na tu re according to the

( r> )

M uslim Law. It is generally called a civil contract, blit th is descrip tion is misleading. In M uslim Law, it is som eth ing m ore than a mere civil contract. The in s ti tu tion o f m arriage is regarded by Muslim Juris ts , as a secular con trac t p a r tak in g o f the na tu re o f Ib ad a t (religions rite.). It is laid dow n in D ur- ru l -M u k h ta r . (See Text 51).

“ N o o th e r fo rm o f Ibadat has been prescribed for us (h u m an beings), which is com ing dow n from the tim e o f A d am and which continues even now and which will con tinue in the Heaven, except N ikah and F a i th .”

In the Q u ra n itself we do not find any positive in junction enjo in ing upon M uslim s any absolute du ty to m arry . T he reason is obvious. Q uran lays dow n a code o f co n d u c t which m ust be follow­ed by every true Muslim. F o r a m ultitude o f reasons, it m ight not be possible for som e Muslims to m arry . T herefo re if Q uran had laid dow n any such in junction , it would have qualified this duty, an d w ou ld have also m entioned and enum erated g ro u ­nds o f exem ption , as it consistently does whenever it im poses any positive duty. This enum era tion would have been too long. Therefore the next best thing was done, and the P rophet was m ade to declare.

“ N ikah is my sunnat, and those who turn away from m y sunnat do n o t belong to u s” . (See Text I.) H edayah quotes ano ther H adis on p. 1.

“ T he P ro p h e t has said “ whoever is on {i.e. embraces) my religion and the religion o f D avid,

he should marry; if he does not possess the where­withal to do so, he should join Jihad and fight in the way of ( i.e. to obtain the pleasure o f) G od." (Text 2).

This Hadis is universally accepted as authentic. The result is that Nikah has been regarded by all Muslim Jurists of every school and sect as a “ Sunnal Muvakkida” i-* ^ i.e. it is treated asa rule of conduct, the observance with which is considered as meritorious and a deviation from which is regarded as a sin.

The Holy Quran, as mentioned above, does not, in so many words, order matrimony. But it does two things—one positive, the other negative. On the positive side, it prescribes rules for the treat­ment of wives. It imposes upon Muslims the duty of treating their wives with consideration, affection and generosity. Since they partake more of the nature of rules of morality than of law, and, more espacially, because they have no direct bearing upon our subject, I will content myself with merely mentioning the existence of these rules in the Quran and will not discuss them any further. We are more concerned with the negative injunctions con­tained in the Quran. These are the verses which enumerate the classes of women a Muslim can not marry. Such verses are 10 in number.

4.3.5. (Text 3).

O ye who believe, you are forbidden to inherit women against their will.

4.3.8. (Text 4).And marry not women whom your fathers

married except what is past.4.4.1 & 2 (Text 5).Prohibited to you for marriage are : Your

(I) mothers, (2) daughters, (3) sisters, (4) father’s sisters (5) mother’s sisters, (6) brother’s daughters (7) sister’s daughters (8) Foster mothers (who gave you suck), (9) foster sisters (10) your wives mothers( I I ) your step-daughters under your guardianship, born of your wives to whom you have gone in (i.e. with whom you have co-habited),—no prohibition if you have not gone in (i.e. if you have not co­habited with your wives, there is no prohibition regarding such step-daughters, born of such women), ( 12) (those who have been) wives of your sons proceeding from your loins, and (13) two sisters in wedlock at one and the same time, except for what is past; for God is oft-forgiving. Also (prohibited are) (14) women already married, except those whom your right hand possess.

(15) Do not marry unbelieving women (idolat­resses) until they believe: a slave woman who believes is better than an unbelieving woman, even though she allures you. Nor marry (your girls) to unbeli­evers untill they believe; a man slave who believes is better than an unbeliever even though he allures you. 2. 27. 5. (Text 6).

Divorced women shall wait concerning themsel­ves for three monthly periods. 2.28.7. (Text 7).

A divorce is only permissible twice: after that, the parties should either hold together on equitable terms, or seperate with kindness. 2.29.1.(Text 8).

So if a husband divorces his wife (irrevocably) he can not, after that, re-marry her untill after she has married another husband and he has divorc­ed her. In that case there is no blame on either of them if they re-unite, provided they feel that they can keep the limits ordained by God. Such are the limits ordained by God which he makes plain to those who understand. 2.29.2. (Text 9).

2.30.3.If any of you die and leave widows behind,

they shall wait concerning themselves 4 months and 10 days. (Text 10).

2.30.4.There is no blame on you if ye make an offer

of betrothal or hold it in your hearts. God knows that ye cherish them in your hearts: but do not make a secret contract with them except in terms honourable, nor resolve on the tie of marriage till the term prescribed is fulfilled. (Text II).

4.1.3.Tf ye fear that ye shall not be able to deal justly

with the orphans, marry women of your choice two, or three or four, but if ye fear that ye shall not be able to deal justly (with them) then only one, or (a captive) that your right hand possesses That will be more suitable, to prevent you froiTl doing injustice, (Text 12).

T h u s , in th e Q u ra n , 19 categories o f w om en are P ro h ib i te d , a n d these p ro h ib it io n s a re c o n ta in e d in the fo llow ing m an n er . T h e first o f these verses,

th e verse 4.3.5, really does no t con ta in any Positive p ro h ib it io n . It m erely forb ids the practice (p rev a len t in p re -Is lam ic days in A rab ia ) o f in h e r it­ing the wives o f th e deceased , like o th e r chatte ls , even ag a in s t th e w ishes o f the w om en concerned. S ince th is p rac tice had reduced w om en to the level ° f q u a d ru p e d s like cam els, horses an d asses, a n d w as, con seq u en tly , a d irect a ffron t to h u m a n dignity, besides being in u tte r v io lation o f the principle o f free will o f the parties to the co n trac t o f m arriage, (a p incip le w hich w as go ing to be ad o p ted as one o f th e R u k n s (C j- ^ J )o r con s ti tu en ts o f a valid m arriage,) it h a d to be fo rb id d en , an d so it was done. T herefo re th is verse m ay logically be excluded from the list o f w h a t m igh t be called p ro h ib ito ry verses i.e. verses w h ich e n u m e ra te o r m en tion the categories o f w om en w ho m ay n o t be b ro u g h t in to lawful w edlock by a person . C onsequen tly , i f we leave o u t this verse (4.3.5.) we find th a t each o f the verses 2.27.5, 2.29.2, 4.1.3 and 4.3.8 co n ta in p roh ib it ions regard ing one class o f w om en, verses 2.28.7 and 2.30.3 jo in tly c o n ta in one p ro h ib it io n ; 4.4.1. con ta ins a p roh ib it ion reg ard in g 13 categories o r classes o f w om en, and, lastly , verse 4.4.2 p roh ib its one class.

SECTION III

The Terminology of the Quran.

It will conduce to clarity if we carefully observe the words of prohibition used in these verses, though a full discussion on their force and technical signi­ficance will come later on. In two verses, 2.27.5 and 4.3.8, dealing respectively with the cases of “ Mushrikat” and “ Father’s Wives,” the injuction has been couched in the active voice and imperative mood. ^ (do not contract Nikah). NowNikah, as I shall try to show later on, is a technical term, and, as a term of art, it must be given its full technical meaning. In 2.29.1, which deals with the case of a divorced woman the injuction is, owing to the exigencies of the context, laid down in another way. The verse begins with the number of talaks, and proceeds on to lay down how the divorced woman is to be subsequently treated. Then it lays down that if she is divorced (a third time), grave consequences will follow. Since woman is under discussion, the words used here are a—* N(she will not be lawful to him i.e. to her first hus­band). Hillat ^ is the antonym of ^ Both words, as will be shown more at length, later on, are terms of art when used in connection with the law of Marriage. What is not Halal J(lawful) is necessarily and logically / enot lawful; in other words it is Haram (unlawful).

T h e w h o le o f the verse 4 .4.1 and the opening P o r t io n o f the nex t verse 4.4.2 are governed by the w o rd ^ w hich is the o p en in g w ord o f the verse 4.4.1 Grammatically the w ord is in singular n u m b e r , fem in ine gender, passive voice o f the verb '* T h ese verses co n ta in p roh ib it ion regard ing 14 ca teg o r ie s o f w om en . T w o po in ts deserve careful c o n s id e ra t io n in this verse. T he first is th a t it m en tio n s , as the first w ord (*■—^ 1 ^ * (yourm others) . M ufassarin j — —i—» have in ter­p re ted it as m ean in g the wives o f all male roots, fa th e r upw ards . T herefo re it includes wives o f o n e ’s ow n fa ther. But verse 4 .3 .8 . (as m entioned above) m en tio n s them i.e. fa th e r’s wives, specifically a n d seperate ly . T h e re the w ord used is ^S ince fa th e r ’s wives a e placed on equal foo ting with 13 o th e r ca tegories o f w om en in verses 4.4.1. an d 2, the re fo re , it m ay be perm issib le to a rgue th a t w h a t­ever is the o rd e r regard ing them ( fa th e r’s wife), th a t very sam e o rder, im pliedly, applies to the w om en o f the rem ain ing 13 categories. I f ^is m ad e the rule regard ing fa th e r ’s wfves, the sam e rule shou ld apply , m utis m utand is , to the o ther w om en m en tioned in these verses, and , regard ing them also, it m ay be said, th a t the o rder o f the Q u ra n is ^ (D o no t co n trac t nikah). I shallrevert to this a rg u m en t la ter on. H ere 1 have ju s t m en tio n ed it.

T h e second p o in t is th a t w henever the Q u ra n w an ts to lay dow n a positive rule, it uses u n am b i-

guous language e.g. ^ V _ I U‘ V -I N _\y_ jL^ sj ff j[ wants to make anyexceptions to the general rule, it enumerates those exceptions. Quran is replete with such cases. I will content myself with two examples which will bear out both parts of this proposition.

4.7.1. (See Text 13)

“ O, ye, who believe, approach not prayers with a mind befogged, untill ye can understand all that ye say,—nor in a state of ceremonial impurity (except when travelling on the road) untill after washing your whole body. If ye are ill, or on a journey, or one of you cometh from offices of nature, or ye have been in contact with women, and ye find no water, then take for yourselves clean sand or earth, and rub therewith your faces and hands.”5.1.4. (See Text 14).

“ Forbidden to you (for food) are: dead meat, blood, the flesh of swine and that on which hath been invoked the name of other than G od; that which hath been killed by strangling, or by a violent blow, or by a headlong fall, or by being gored to death, that which had been (partly) eaten by a wild animal; unless ye are able to slaughter il (in due form); that which is sacrificed on stone (altars); (Forbidden) also is the division (of meat) by raffling will) arrows.”

Again, the expression 1 V has been usedtwice, in 2.27.5 (legalding idolatresses) and again in 4.3.8 (regarding father’s wives). Similarly, the word

has been used in the omnibus verse 4 .4.1

as shown above. The same word in active voice, masculine gender has been used in 2.21.6 .

“ He has forbidden you dead meat, and blood and I he llesh of swine and that on which any other name hath been invoked besides that of God. But ■ f one is forced by necessity, without wilful dis­obedience, nor transgressing due limits,—then is he guiltless.” (See Text 32)

Now, it is a universally accepted canon of con­struction without any exeption whatsoever, that whenever a term of art is used in a Statute (and Quran when dealing with legal matters is a statute) at more than one place, it must be given the same meaning at each place. Both and * j~-*■belong to s jL. and are derived from the sameroot f - J -c - A mere change in their voice (active or passive) can not change their technical meanings. All jurists are agreed that ham and blood etc. are absolutely prohibited. Why? Because they have been made “ Haram” by Quran, by the use of the word The mere fact that, under certaincircumstances mentioned in the verse itself, they become lawful, does not, according to any jurist, modify their Hurmat. No authority argues that because they may, under certain circumstances, become lawful, their Hurmat is only a temporary one, and, because their Hurmat is temporary and may be removed in certain specified eventualities, they are not totally and absolutely Haram. The same interpretation should, in my view, be given to the word in verse 4.4.1.

SECTION IV.

The Women Piohibited in Marriage.

Now let us consider the cases of women who are prohibited either absolutely or temporarily. There are 19 classes of women-thus prohibited :

(1) Mothers (2) Daughters (3) Sisters (4) Father’s Sisters (5) Mother’s Sisters (6) Brother’s Daughters (7) Sister’s Daughters (8) Foster-Mothers (9) Foster- Sisters (10) Mothers-in-law (11) YVives’s Daughters (Step-Daughters) (12) Sons’ Wives (Daughters-in- law) (13) Father’s Wives (Step-Mothers) (14) two sisters at one and the same time (15) Married Women (16) Mushrikat ( 17) Thrice-divorced Women (18) Women in Jddat (19) marrying more than four women at the same time.

These 19 classes of women have been variously grouped.

Hazrat I bn Abbas has made two divisions of the first 14 classes mentioned above. Abu Bakr Mohammad Bin Abdullah in his book “Ahkam- ul-Quran” p. 155 of Vol. I quotes him as follows • “ Ibn Abbas’es division is into two, seven on account of Nasab, and seven on account of Sehr; and this is a correct division” (See Text 34). Hedaya simply proceeds to discuss the 14 cases seriatim without undertaking to group them into classes.

In Fatawae Kazi Khan, Fakhruddin Hasan Bin Mansur proceeds as follows (p.l67-J69). (Text 35)

“ C h a p te r on M oharramat” (women forbidden lobe m a rr ie d ) .

“ P ro h ib i t io n o f N ik a h is o f tw o kinds, p e rp e tu a l, a n d n o t p e r p e tu a l” ( tem p o ra ry ) .

“ P e rp e tu a l p ro h ib i t io n arises from c o n s a n ­g u in ity , fo s te rag e an d affinity. N o w those w o m e n w h o a re p ro h ib ite d on acco u n t of c o n s a n ­g u in i ty a re e n u m e ra te d (in th is verse i.e. 4.4.1) by G o d ; as reg a rd s w om en p ro h ib ited on acco u n t ° f fo s te rag e ( the ru le is th a t the sam e k ind o f re la ­tio n s as a re p ro h ib ite d on a c c o u n t o f consan g u in ity , a re a lso p ro h ib i te d on a c c o u n t o f fosterage. N o w as re g a rd s w o m en p ro h ib ite d on acco u n t o f affinity; affin ity sp r in g s up fro m a valid n ikah , an d also from a c o -h a b i ta t io n , w h e th e r it be lawful, o r on acco u n t o f a sh u b h . o r a p u re fo rn ica tio n . A n d , now , those M o h a r r a m a t w ho a re not fo rb ib d en in pe rpe tu ity a re seven in m u m her ( 1) exceeding the n u m b er a llow ed by law ; (2) c o n ju n c t io n o f tw o sisters (3) c o n ju n c t io n o f a free w o m a n an d a slave girl (4) id o la tre ss (5) a n o th e r ’s m arried wife (6 ) a n o th e r ’s M o a t ta d a (i.e. w h o m her first h u sb a n d has d ivorced a n d w ho has not co m p le ted the period o f her idda t) (7) c o n ju n c t io n o f tw o such fem ales as cou ld no t have in te r-m arr ied w ith each o ther, if one o f them h a d been a m a le .”

I have re p ro d u c e d p o r t io n s o f the passage and hav e a p p e n d e d its t ra n s la t io n to show (1) th a t the a u th o r , K azi F a k h ru d d in , w ho , a t first, w as th e K azi o f D a m a sc u s , an d , la te r on , becam e th e K a z i o f I s p h a h a n , has p laced all these p ro h ib ited w o m en in

the one category of (Moharramat). Hespeaks of each of them exactly in the same language.(2) that his division of Hurmat into two classes of Mo-abbada and Ghair Mo-abbada does not, on a correct interpretation of the text, show that he meant to draw any distinction in the nature of the Hurmat which attaches to women falling under these various groups. He was merely distinguish­ing them from each other from the point of view of the duration of their respective periods of Hurmat. The whole context shows that the nature or essence of Hurmat was the same in whichever class the particular woman might fall.

Dur-rul-Mukhtar proceeds as follows : p. 300 (Text 36) ' ‘Chapter on Moharramat (prohibited women). Causes of prohibition are many—( I) Con­sanguinity, (2) affinity, (3) fosterage, (4) collection (5) Ownership (6) Atheism (7) Marrying a slave woman upon a free woman. The author will discuss them in this very order. The three topics of thrice-divorced women, marrying a married woman or one in iddat are left out here and will be discussed under the topic of Rijat.

The word “ Collection” ( mentioned under( 4 ) above) is explained by its commentary Raddul-Muhtar as follows : ( See Text 37 ) “ “collection” i.e. collecting together (a) Maharim (i.e. women who could not have intermarried with each other, if one of them had been a male) for instance two sisters and their likes and (b) strangers i,e, exceeding the number four.”

T h u s i t will be n o tic e d th a t th is c lassif ica tioni j n o t mac*e 011 basis o f th e n a tu r e o f the

Lln n a t , b u t m e re ly fo r th e p u rp o s e s o f d iscussion .° m e n o c c u p y in g s im ila r c h a r a c te r hav e been

^ r(Hiped to g e th e r e.g . a m a r r ia g e w ith tw o siters a n d a m a r r ia g e w ith m o re th a n fo u r wives a re M en tio n ed to g e th e r .

R a d d u l M u h t a r d o es no t give a n y c lassif ica tion ° f its ow n . It m ere ly ex p la in s th e w o rd s o f D u r- ru l-IV fukhtar o f w hich it is a c o m m e n ta ry .

F a tw a e — A lam g ir i begins a new c h a p te r “ o f w o m en w h o a re un law fu l o r p ro h ib i te d : O f these th e re a re n in e c lasses .” T h e n it d iscusses th em class by class. Its c lasses a re as fo llow s :

T. o f su ch as a re p ro h ib i te d by reason o f N a s a b o r c o n sa n g u in ity .

II. o f such as a re p ro h ib ite d by re a so n o f affinity.

III. o f w o m e n w h o a re p ro h ib ite d by reaso n o f fos terage .

IV. o f w o m en w ho c a n n o t be law fully jo in e d toge ther.

V. o f fem ale slaves m a r r ie d u p o n free w om en .VI. o f w o m en w ho a re p ro h ib ited by be ing

involved in th e o w n ersh ip o f o thers .

V II. o f w o m en p ro h ib ite d by reaso n o fpoly theism .

V III. of w o m en p ro h ib ite d by re a so n o fp roperty .

( IB )

TX. of women prohibited by reason of Divorce.

On comparison, it is found that the classi­fication in Fatawai Alamgiri is the same as in Dur- rul-Mukhtar with one minor and unimportant exception.

Macnaghten who wrote his famous book early in the last century does not give any classification. He merely mentions the cases of prohibited women in a few short, succint sentences on pp.57 and 58.

Wilson who wrote late in the last century also does not seem to classify Hurniat. He begins a new heading on p . l l l entitled “ Rules Restrictive of intermarriage” in 7 paragraphs, para 34 runs as follow :

“Persons are prohibited from intermarrying “when they are closely related to each other by “Consanguinity, Affinity or Fasterage.” Paras 35 36 and 37 deal with cases of consanguinity, Affinity and Fosterage respectively. Para 38 deals with the case of unlawful conjunction, and para 39 with the case of difference of religion. In para 39A, he deals with the cases of “marriages invalid but not void ab initio.” Under this head, he puts down three categories of marriages :

(1) marriages contracted without witnesses.

(2) marriages with women undergoing iddat.(3) Marriages prohibited by reason of difference

of religion, and, in this section he also mentions the effects of fasid marriages. In para 39 B he deals

w ith the cases o f Jactitation o f marriages. In para he describes the effects o f a valid marriage.

Sir A b d u l R ah im m erely discusses “ Void and V itia ted M arr iag es in tw o sh o r t p a ra g ra p h s on P-330.

N a w a b A b d u r Rahman in A rt 21 (p. 15) divides p ro h ib i t io n s in to pe rp e tu a l a n d te m p o ra ry , a n d th en p ro ceed s on to e n u m e ra te “ th e causes th a t p r o d u c e ” p e rp e tu a l an d te m p o ra ry p roh ib it ions . B u t in his in t ro d u c t io n (p .X II) he m en tio n s th a t he h a s “ co llec ted th e c o rre sp o n d in g o rig ina l A rab ic T ex t in th e A p p en d ix , a rtic le by article , in o rd e r to e n a b le the re a d e r to go d irect to the orig inal so u rc es w ith o u t m u ch tro u b le an d find o u t for h im self the tru e an d c o rrec t law .” N ow , if we re fe r to the c o r re s p o n d in g A rab ic T ext, given on p .334, we find th a t lie has based his A rt 21 upon F a ta w a e K azi K h an . I have a lread y discussed K azi K h a n . H e is c learly classifying the p roh ib ited w o m a n according to the reasons f o r which the H urm a t is im p o sed a n d n o t according to the nature o f the hunncit.

S ir D. F. M u l la ’s Principles o f M a h o m e d a n L a w 13th ed it io n (w hich has been ed ited by Sir Syed S u lta n A h m a d o f P a tn a ) divides m arriages in to va lid , i r re g u la r a n d void. (P a ra 253 p.231). T h e n in su b s e q u e n t p a ra s 253-263 (p .232-235), i t d ea ls w ith the m arr iag es w ith w om en beloging to d if fe ren t ca tegories . A c co rd in g to M u lla on ly m a r r ia g e s p ro h ib i te d o n g ro u n d s o f co n san g u in ity , affin ity a n d fo s te ra g e a re vo id ; every o th e r cause o f

prohibition (e .g .d) absence of witnesses (2 ) exceed­ing ihe p e r m i s s i b l e number b y man (3) marriage in iddat (4) difference of religion (5) and unlawful conjunction) will render the marriage merely irregular and not void.

SECTION V.

Baillie.

I have deliberately left to the last a detailed consideration of the views of two celebrated authors o f high r e p u t e , Baillie and Amir Ali. The former published the first Volume of his work, A Digest of M ohum m adan Law, dealing with the doctrines of Sunni School, in 1 8 6 5 , a/)(l Ills second Valume, dealing with the Imamia Law in 1874. These two parts are, in the main, paraphrases, in English, o f the Fatawai Alamgiri and Sharaya-uM slam respec­tively. Amir Ali published the first edition o f his M ohammedan law in 1880. Since the time o f their publications, these two works have been consis­tently held in high esteem in Tndia, and the opinions expressed therein have been accepted as correct exposition of Law on the point in issue.

Tt is correct to say that in modern times, in India, no other writers on Muslim Law have cap tured the imagination of scholars m ore than these two authors.

But it must be mentioned that Baillie is shining in the borrowed light of the great work he has translat­ed or paraphrased— Fatawai Alamgiri,

As regards Baillie, Amir Ali points out in his preface to the first Edition (p.XI) that it is “ a free paraphrase o f portions of the Fatawai Alamgiri and the Sharaya-ul-Tslam.” and that “ Tnspite o f his (Baillie’s ) great erudition inaccuracies are to be found.” Later in the following para, Mr. Amir Ali opines that “The usefulness o f these digests would have been greatly enhanced, if Mr. Baillie had thought it worth his while to give in every case, as he has done in some instances, the references to the authorities he was paraphrasing or translating. Mr. Baillie himself points out in his Preface to the Second Edition (p.XIII) that the first three and the eleventh books are abridged translations of the corresponding books of the Fatawa, with accasional extracts from other authorities. The other books are more in the nature of selections from the work generally. He proceeds on to say :

“ Even in parts of the work that may be thought more particularly my own, as in the preliminaries to some of the books, and the Chapters on Invalid and Void Marriages...I have avoided, as much as possible, speaking in my own person, and never without authority duly referred to.” His Chapter VIII mostly contains his personal opinion. Sir W. Petheram C.J. and Beverley J have remarked in Aizunnissa v Karimunnissa I.L.R.23 Cal. 130 at p. 140 “ Mr. Baillie in Book 1 Chapter VIII of his

Digest discusses the distinction between void and invalid marriages; but it is to be borne in mind that that Chapter is not, and docs not profess to be, like some other parts of his work, an “ abridged translation of the Fatawai Alamgiri with occasional extracts from other authorities." It is really, as the preface shows, a disquisition upon the subject by Mr. Baillie himself, and, except so far as it is correctly based on translations from recognised authorities, it has no greater value than any other English text book.” In my opinion, this is a very correct appreciation of Baillie, and, lays down a sound criterion for estimating the value to be attach­ed to Book I Chapter VIII of Baillie and to the views expressed therein. Mr. Baillie has discussed in this Chapter (pp. 150-55) Invalid and Void marria­ges, and has expressed an opinion on p. 154 that marriages prohibited only on grounds of consangui­nity, affinity and fosterage are void, while, every other kind of unlawful marriage is merely fasid. Thus he seems to adopt a division of prohibited marriages into two categories i.e. those alone which are perpe­tually prohibited (i.e. prohibited on the three grounds of consanguinity, affinity and fosterage) are void, whilst all others are merely invalid.

Since Baillie and Amir Ali have long been con­sidered as infallible authorities, it will not be out of place, in the first instance, to show that in spite of their eruditions and scholarships, neither of them is so, and that both have based their arguments on assumptions which are not borne out by authori­

ties, and at few places have either misunderstood or misquoted the authorities they are relying upon. Baillie has a full chapter (Ch.Vir, BK.I page 149- 158) on “ Invalid Marriages and their effects.” He has divided it into two sections. Section 1 (p. 149- 155) deals with “ The distinctions made by Abu Yusuf and M oohum m ud between Tnvalid and Void M arriages.” i„ Section H (p. 156-58) he deals with “ The effects o f Invalid M arriages.” The latter section correctly describes the effects o f an invalid M arr iage , and sums up the correct state o f law. What is an invalid marriage is discussed by him in Section I which, in my opinion, is the least satis­factory part of his monumental work.

(1) The first argument of Baillie is based upon misconception and unwarranted assumptions. On p. 150 he says “ Mooharim, according to us {i.e. all o f the Hanalite sects), are women whom a man is perpetually interdicted from marrying, by reason of consanguinity, affinity or fosterage.” Then, on p. 152, after mentioning that “ at first sight, it would seem that whenever a Mooslim inter­marries with any woman that it is unlawful for him to marry, the marriage is void, according to Aboo Y oosuf and M oohum m ed” as she is o f the “ M uhra- m a t ,” he proceeds on to argue that “ This term {i.e. M uhram at) js synonymous with“ M oo h ar im ” both being the plural formo f the same singular “ M uhram ut” it mightbe fairly inferred that it was only of the “ M oohar im ” r J ^ that the au thor o f the H idayah m eant to

assert that connection with them, though under the sanction of marriage, would expose the parties to hudd, in the opinion of Aboo Yousuf, Muhummad and Shafer”

Regarding this argument, 1 have the following observations to make.

Firstly, he betrays a lack of philological know­ledge. He is wrong when he says that Muharram at is the regular, and Mooharim, the irregular plural of Muharumut. Tn fact Moohraim is theplural of Muharram whereas Muharramat

is the plural of “ Muharumut. Muhar­ram is the masculine whereas Muhrumut

is the feminine gender. The last letter or ° is

what is called ^ or the suffix which witt

HOf lW l h W l) Of Did m sculine gender into one of the feminine gender. It is, therefore, a philological inaccuracy to say that ^ (Mooharim) isthe irregular plural of Muhrumut

Secondly, it logically follows from the above that his application of the word ^ to women is wrong; nor can he give it a technical meaning by using this word to denote those women who are perpetually prohibited. It is not permissible to use a word of the masculine gender to denote a class of women. Hence the very premises on which he starts his argument (i.e. Mooharim, according to all Hanafi sects are women who are perpetually prohibited) falls to the ground. If we overlook

th is ph ilo log ical m istake, an d , subs titu te the word M u h r u m a t fo r M o o h a r imthis difficulty arises th a t Baillie h im se lf is adm itt ing (o n p. 152) th a t “ the w ord M u h a ru m a t is som etim e app lied to all w om en w ho are unlaw ful o r p roh ib it ed to a m an , i.e. he h im self ad m its th a t the w ord

can be. an d is, app lied to w om en w ho a re merely tem p o ra r i ly p roh ib ited . E arlie r on the sa m e page (p. 152) he h im self m en tions th a t the o p in io n s o f A bu Y u su f and M o h o m m a d ( th a t w henever a M uslim m arries a w o m an w ho is un law ­ful to him because she is not a fitting subject o f m arr iage) a re based upon the fact th a t she belongs to the class o f an d , in o rd e r to get over thisdifficulty, he does tw o things, ( 1) he m akes the ph ilo ­logical m is take (show n above) o f trea ting bo th

a nd ^ as applicab le to fem ales, and(2 ) he gives to th e la tte r w ord ^ a technical m ea n in g w hich it is n o t cap ab le of. In fact, the t r u e position is this. In Sharia t, every th ing which is p ro h ib ited is called H aram . T h u s the flesh o f p ig is h a ra m ; W ine is h a ram , Z ina is ha ram , m arriage w ith m o th e r is h a ra m and and so on. T he collec­tive n am e given by S hara to all things which are m a d e H a ram . is ?j ^ This w ord includes every­th in g w hich is h a ram . N a tu ra l ly the w ord f j ^

will also inc lude m arriages w ith w om en w ho are p ro h ib ite d . T h is is the general te rm w hich includes every k in d o f p roh ib it ion . A s regards the p a r t i ­c u la r p ro h ib i t io n regard ing m arriages w ith certa in c lasses o f w om en , the w ord w hich has com e to be

associated with this kind o f is since theQ uran says what women are unlawful to marry i.e. it enumerates the women who cannot be married and therefore they are all put down under the general name o f oLi/ - /.<?. women who are Haram. Tt will thus be seen that fs really a kind o fl*j ^ In the latter term, are included in pigs’ llesh, wine, zina , a marriage with a prohibited woman. But the first w a r d ° l ^•-’wiJI apply to the women who

are thus made unlawful. The marriage with is one o f the things included in A m other isone o f the whereas a marriage with her isone o f the Aj ^

Thirdly, Baillie makes a bold and an unw arrant­ed statement that according to all Hanafisects are women with whom marriage is perpetually prohibited. Even i f we use the right word wefind that jj) u)l Ihc undent lexis like Tafsir Kabir,

Hedaya etc, the word is used to denote allwomen with whom marriage is un law ful whether perm anent/y or temporarily.

Fourthly, by means o f a phiiologically unsound reasoning, he is im puting views to A bu Yusuf, M oham m ad and Shafei which they never held.O n p . 154, Baillie says that only the women who are perpetually prohibited are (or ), andthen he makes a bold statem ent tha t “ o f them only can it be averred that marriage contracted with them would be void, according to A bu Y usoo f and M o h a ­m m ad .” In o ther words, Bailie m eans to suggest

that according to Abu Y usuf and M oham m ad m arriages with other prohibited women (i.e. women in respect o f whom the prohibition is temporary and not perm anent) are not void. This is untrue, as will be shown later on, when I shall discuss the legal position of such women seriatim. Similarly, he is im puting to the learned au thor o f H edayah som ething of which he is quite innocent. On p. 152, he suggests that the au thor o f Hedaya m eant to assert that according to Abu Yoosuf, M oham m ad and s'nafei, co-habitation only with permanently prohibited women, under the sanction of marriage, would expose the parties to Hudd. Neither Hedayah says anything like that, nor was it the opinion of those three learned Doctors, as I shall show later on.

Fifthly, on page 151, he mentions the cases of a Majoosia (Magian woman), a thrice repudiated w om an and a woman in her iddat; and, after saying that none of them can be said to be perpetually p r o h i b i t e d to a m an (a perfectly true statement,) he draw s a conclusion which is logically unsound and factually untrue i.e., “ consequently they are not M oohar im or

(2) The sccond argum ent of Baillie converts the cause into effect and effect into cause. He argues like this :

(a) If co-habitation, under the colour o f a m arriage, exposes the parties to the hudd, the connection itself is Zina.

(b) If the co-habitation is Zina, the oR-springs will be illegitimate.

(c) If the co h ab ita t io n is Zina and the chil­dren are illegitimate, the marriage itself is void.

This argument is fallacious. The liability or non-liability to Hudd and the legitimacy or non- legitimacy of the child are not the causes which result in the validity or invalidity of the marriage. Marriage is not the result o f these causes. M arriage is the cause, and the legitimacy of the children is the result of this cause. There may be a childless marriage. Every co-habitation does not produce conception. Therefore, the legitimacy or illegiti­macy of the children can not be a factor in the deter­m ination o f the nature of the marriage, whether it is Sahih or Fasid or Batil. To determine the nature o f a thing, the lest sliOilM be Slldl as can always be available for application. The legitimacy or illegi­timacy of the children can be no test to determ ine the legality or the illegality o f a supposed m arriage, because there may be no children. Now as regards the other test Zina, Baillie’s first premise is w rong i.e. if co-habitation, under the colour o f m arriage, exposes parties to the hudd, only then the connec­tion is Zina. In all the 8 cases o f shubhat-u l- Ishtibah or shubhat-ul-Fail, the sexual in tercourse with the woman, according to all au thorities, is certainly whoredom or Z ina, and the resulting child is illegitimate, but the man will escape H udd , if he avers that he thought th a t the w om an was lawful to him. Tt appears th a t M r. Baillie entirely overlooked

the Chapters on punishments in the books of ancient jurists when he opined that if co-habitation, under colour o f marriage, exposes parties to the hudd, only then the connection is Zina. Owing to the extreme severity o f the hudd for Zina, and owing to the saying o f the prophet (See Text 38) (give up punishment in case of doubt), the Muslim jurists have refused to award punishment for Zina, except in the most extreme cases, To substantiate my aver­ment. I will give a few examples of the cases where no hudd is inflicted, even though, the co-habitation is admittedly unlawful i.e. it am ounts to Zina.

1 will first quote Hedayah’s definition of Zina (Vol. 11 p .586) (Text 97). '

“ Zina or whoredom, both in its primitive sense, and also in its legal acceptation, signifies the carnal act o f a man with a woman, in her vagina, who (the woman) is not his property, (either by right of marriage or o f bondage), and in respect of whom the m an entertatins no doubt in respect o f such own­ership” . (See Text 39). The translation of Mamilton, in Vol. II p. 18-19, leaves out the translation of the wards J (in her vanina). These words are of extreme importance in determining whether the act am ounts to zina or not, just as, in cases of rape, under the Indian Penal Code, the question of penetration o f the male organ in the vagina of the w om an is necessary.

Now, there will be no H udd in the following cases, though the co-habitation is unlawful, or, zina in every case.

(1) If the man declares that he co-habited with the w om an under an erroneous impression that she was lawful to him.

(2) If one co-habits with one's wedded wife after she becomes an apostate.

(3) If one co-habits with one’s wedded wife after she becomes unlawful to him, either because he co-habits with her mother or daughter, or, because she co-habits with his son, or, the son kisses her, or, looks at her private parts with passion.

(4) If a woman, adult and sane, co-habits with a boy.

(5) If a man or a woman commits an adultery against his or her will.

(6) If a man marries a woman whom he had never seen before, and, on the first night, he go<jS

10 Die room o f m o t h e r milliail by mistake. ;md CO.habits with her.

(7) If a man confesses that he had comm ited Zina, but the woman in question says tha t lie had married her, neither of them will have hudd.

(See Fatwai Kazi Khan p.406-8.) (Texi 40).Thus it will be seen that there is no (hudd)

even in some of the cases o f pure adultery. If there can be a zina and no H udd, it will not be a good logic to say that no marriage can be held void, unless, a co-habitation, under the colour o f such a marriage, will expose the parties to the H udd. Again, it is not necessary tha t both the parties should, in every case, be liable to a hudd. There are cases

where, even in the more strict view of Abu Yousuf, only one party will be subjected to the hudd e.g.

(1) I f one party confesses to have com m itted . zina, and the o ther party denies it, according to Abu Hanifa, there will be no hudd for either, but. accord­ing to A bu Yoosuf, there will be hudd for the con­fessing party, and not for the other.

(2) If' an adult comm its zina upon a minor, or an insane, or a sleeping girl, only the man will be punished, and not the woman.

(3) The third argum ent o f Bailie, in fact, brings out, his real opinion which he does not express either clearly, or, boldly, or, in so many words. On page 151, he mentions, on the authority o f H idaya, the divergence in the views of Abu Hanifa, on the one side, and A boo Yusuf, M oham ad and Shafei, on the other, on the question whether hudd is or is not to be inflicted upon a person when he marries and co-habits with a w om an who is unlawful to him. On page 154 (last line) he says “ Tt is difficult to say which o f the opinions has been adopted by the learned .” Then, o n page 155, he mentions that Asbeejani supports Abu Hanifa, while, A boo Leeth supports the disciples, and the Fatw a is in accor­dance with the latter view. He quotes these two views (o f Asbeejany and A boo Leeth) from Fataw ae Alamgiri Vol (II) p. 210. In the footnote Baillie states th a t the M oozm irat is cited in Almgiri, but, says Baillie, “ it is not very clear which o f the opini­ons he (i.e. the au tho r o f M oozm irat) has ad op ted” . Then Bailie writes “ A ccording to an authority

cited in another place, in the Fatawae Alamgiri, the opinion of Abu Hanifa is entitled to preference absolutely over that of the two disciples even though they are agreed, and unquestionably so, when they differ. It would seem that the compilers of that work have adopted it in the present instance, for. though they have given this chapter the heading of “ Fasid Marriages and their Effects’' they have omitted to give any description o f the marriages to which that title is applicable; as if, with Aboo Hanifa, they have rejected the distinction of batil or void marriages, altogether. Their eveident inclination to the opinion o f Aboo Hanifa gives great additional weight to it, and ought, perhaps, to be decisive of the question in India.” (See Baillie Vol. 1. P. 155)

T have quoted the entire passage to show how Baillie has jum ped from conclusion to conclusion and drawn absolutely unwarranted deductions from inadequate premises. His reasoning may be analysed as follows :

(i) He begins with the statement that some­where in the Fatawae Alamgiri, an authority is cited laying down the rule that the opinion of A bu H anifa should prevail over those of the two disciples, even if they are agreed. He gives no reference, with the result that the authority he had in mind, can not be referred to, and the context, in which it has been so stated, cannot be found out. I f this view had been accepted, the Muslims Law would not have been what it is today, especially

in the dom ain o f the Family Law. The Muslims would have, long ago, ceased to have any Law of M arriage. So far as India is concerned, the reverse rule has long been accepted. Tt was laid down in A bdul Q adir v Salima I.L.R. 8 all 148, that it is a general rule for the interpretation of Muslim Law that in cases o f difference of opinion am ong Abu Hanifa and his two disciples, the opinion o f the majority must be followed, and in application of legal principles to temporal matters the opinion of Qazi Abu Y usuf is entitled to the greatest weight.

(2) Then, he mentions, in the next sentence, that because the Fatawae Alamgiri does not define Fasid M arriages, it, by implication, adopts the view of Abu Hanifa, and discards the notion of the very existence of a batil marriage, so that, all marriages are either Sahih or Fasid. This statement is amazing. In the first place, no such inference can be drawn from the method of treatment of the subject in the Fatawae Alamgri- Take the case of Fatawae Kazi Khan. He has a Book on Marriage, and divides it into 33 d iapters. Then he begins another Book on Divorce which consists o f 19 chapters. He does not define m arriage in the former, or divorce in the latter book. He straightaway proceeds to discuss the law relating to Marriages and Divorces, in the two Books, on the assum ption that the existence of the institution of M arriage and Divorce in the Muslim Law is self- evident and well known. Then again he has no seperate C hapter on Fasid Marriages. This method

of treatm ent can not be made the basis of any argum ent that, because he fails to define marriage, therefore, every physical act of co-habitation between a male and a female is included by him in that term; or because he has no chapter on Fasid Marriages, he does not recognise the existence of such a thing as a Fasid Marriage.

In the second place, if Fataw ae Alamgiri had really preferred the view of Abu Hanifa to that of his disciples, and it had been thought fit to change the time-honoured and the prevailing view of the disciples, such a fundamental change would not have been sought to be introduced in this indirect manner. Em peror Aurangzeb would have done so in a more straightforward and direct manner.

Therefore, in my opinion, the conclusion drawn by Baillie from the omission of the compilers o f the Fatw ae Alamgiri to define Fasid Marriages is based upon insufficient grounds, and cannot be accepted.

(3) In the concluding sentence of the passage quoted above, Baillie assumes that the authors of the Fataw ae Alamgiri were inclined towards the opinion o f A bu Hanifa, and, that this inclination on their part gives additional weight to the opinion of Abu- Hanifa, and tha t this fact “ should be decisive o f the question in Ind ia ,” i.e., in India, the opinion o f A bu H anifa should now be adopted in preference to those of the disciples. Here Baillie has accepted as correct, the illogical deduction he has drawn above, and has m ade this deduction the ground for the opinion he has thus expressed in the last clause o f

the sentence. He means to suggest that even if the view o f Abu Hanifa was not accepted in India before the compilation o f the Fatawai Alamgiri, it should be accepted now because the compilers o f that work have shown their inclination towards his views. He forgets that the Ulamas w ho took part in its compilation were men of no repute—I mean com­paratively. The world does not even know their names. Therefore, it is too much to say that the mere inclination of persons whose very names we do not know, should be made a ground for bringing about such a fundamental change in the Family law of the Muslims in India. Again, Islam is not a territorial religion. W hat is accepted as law, either in India, or in Egypt, or in Morocco will also be accepted as such, in other parts o f the world where the followers of that particular school live. He means to suggest that in India, this Indian compilation should be taken as the correct and authoritative exposition of law as a sort of lex loci. He is forgetting that there is 110 scope for this kind o f conception in Muslim Law, which is not territorial in extent or applicability, but international in its scope and outlook.

Again, the very fact of the inclination of the compilers of Fatawai Alamgiri towards the view of o f A bu Hanifa has been assumed on insufficient data. The reason for making this assumption, as given by Baillie, is very unconvincing, and no such opinion can be imputed to them.

SECTION VL

Syed Amir Ali.

I have now to consider the classification adopted by syed Amir Ali. I have left him till the last, not because I attach less importance to his views, but because I attach the greatest importance to them. His monumental work on Muslim Law has, during the last seventy years, been rightly considered as one of the greatest contributions lo the legal literature, and the greatest original work on Muslim Law, ever produced by any single individual in India. It has even been instrumental in bringing about a change in the Muslim Law by mean of Legislation e.g. the Muslim law of Wakf. It has been treated with the utmost respect sometimes amounting to awe, by all the High Courts in India, and even by the Privy Council. All the subsequent writers on the Muslim Law have referr­ed to it as of the highest authority. The views of a jurist and a judge of the status, the erudition and the scholarship of Syed Amir Ali must be treated with the greatest possible respect, and the most cogent and convincing arguments will be required to controvert any rule propounded or laid down bv him.

It was for this reason that I left him to the very last.

He discusses “ T he s ta tus o f M arriage” in Ch. VI o fV o l l II (p .315 and onw ards). He divides the c h a p te r in to Sections. In Section II (p .322-332) he discusses ^T he |ega i disability tom arriage) O u trigh t he proceeds to say “ These Prohibitions m ay be divided under fo u r heads, viz.(A) A bsolu te , (B) Relative, (C) Prohibitive, and (D ) D irectory . ’ U nder A bsolu te , he places p ro h ib i­tions which arise from consanguin ity , affinity and fosterage. On p .326, he lays dow n th a t a m arriage con trac ted within the prohib ited degrees is null and void. U n d er Relative prohib itions, he places the cases o f

(1) C o n tem p o ran eo u s m arriages w ith two w om en w ho stand to each o th e r w ithin prohib ited degrees, incl uding, in this g roup, o f course, m arriages with tw o sisteis.

(2) M arriage with a fifth wife in the presence o f fou r wives.

(3) A free w o m an m arry ing her ow n slave.(4) A free m an m arry ing his ow n slave w om an.(5) M arriage w ith a polytheist.U nder P rohib itive incapacity, he places( 1) m arriage w ith a m arried w om an(2) m arriage w ith a w om an w ho is in id d a t(3 ) m arriage o f a m u slim w om an w ith a non-

m uslim .U n d er D irectory prohib itions, he places.

(1) M arr iag e w ith a p reg n an t w om an .

(2) Re-marriage with a woman divorced by la’an (but only according to Shias, Shafeis and Malikis).

(3) Marriage during Ihram (according to sha­feis, Malikis and Hambalis.)

In the following chapter (VII), beginning from p. 376, he deals with, and discusses illegal and invalid marriages.

So far as I have been able to investigate, Syed Amir Ali, has for the first time divided the “ Prohi­bition.y.” as against the “ Prohibited women” into various categories. The classification thus made by him does not seem to have been made by any previous authority, Its nearest approach is to be found in Fatawae Kazi Khan where the author says :

“ Prohibitions are of two kinds, perpetual and non-perpetual” . But Qazi Khan, as I shall try to show later on, meant to divide the (Prohibition) according to the periods of the dura­tion, into and ° ( p e r p e t u a l and non-perpetual). The whole context shows that he did not, like Syed Amir Ali, meant to suggest that this division was according to the consequences, or, legal effect of the Hurm at. To him, Hurmat is the same. It has got the same effect, the same consequences, and produces the same legal results, so long as it lasts, whether it is permanent or non-permanent. I have, consciously and deliberately, avoided using the words “ Perpetual or Absolute” on the one hand and “Tem porary” on the other, because these words

have acquired, more or less, a technical meaning when used with reference to the Muslim marriages.

D ur-ru l-M ukhtar merely says, “ The causes of prohibitions are o f various kinds,” (Text 36), and then he begins to discuss them under 10 headings. Fataw ae Alamgiri says that there are 9 classes of women who are unlawful or prohibited, and each class is discussed in it seperatelv.

Q uran has expressly prohibited marriages with 19 classes o f women. O f these, undoubtedly 7 classes of women are blood relations; in other words, they are related to the man by ties of consanguinity. They are (1) M other (2) Daughter,(3) Sister, (4) Fa ther’s Sisters (5) M other’s Sisters(6) B rother’s Daughters and lastly (7) Sister’s Daughters.

As regards these seven classes o f women, there has practically been unanimity am ong all jurists, o f all ages, with the single exception o f Abu Hanifa, tha t they are totally and perpetually prohibited. F o r brevity’s sake, I shall refer to them in future as “ women related by consanguinity.

The next group, which T shall similarly refer to as W om en related by fosterage” consists o f two classes o f women (1) Foster-M others and (2) Foster Sisters.

The third gorup, to be here-after referred to as “ w om en related by affinity” consists of

(1) Wives M others (Mother-in-law)(2) W ives’ Daughters (Step Daughters)

(3) Sons’ Wives (Daughters-in-law)(4) F a ther’s Wives (Step-mothers).These groups II and III are treated exactly like

group T. They are also accepted universally as consisting of women with whom marriage is to ­tally and perpetually forbidden. But it seems strange that step-daughter’s case is treated like this, because marriage with her is not forbidden in every case. Tt is only forbidden if the man has had actual co-habitation with her mother. In other words, in her case, too, the prohibition is not absolute. It is conditional, though it must be added that once the condition is fulfilled, her Hurmat becomes perpetual like that of other classes of women in Groups I, II and III.

I shall revert to her case later on.This leaves us with women belonging to six

categories i.e.(1) marrying two women who are within

prohibited degrees of each other, including the much discussed case o f two sisters.

(2) Marrying a woman who is already married and whose husband is alive.

(3) Marrying a Mushrika.(4) Marrying a woman whom one has divorced

thrice, and who has not married and actually co­habited with another man.

(5) Marrying a woman who is observing iddat on the death of her first husband, or, on divorce from some other person,

(N ote— Marriage with a pregnant woman falls within this category, because, if the pregnancy is from a recognised source, the period of iddat is automatically increased till the time of delivery).

(6) A man marrying a fifth wife when he has already got four wives.

I shall leave out of consideration the following cases which, in modern times, can not arise.

(1) Marriage with one’s own slave girl.(2) Marrying a slave girl upon a free woman.(3) A free woman marrying her own male slave.These three cases are discussed, at great length,

in the books of old jurists. But since there are no slaves now, the whole discussion has become merely academic, and will serve no useful purpose.

There is another case mentioned in the Q uran; but, strangely enough, it is not discussed by any author, either old or new. Probably the reason is th a t owing to the most strict Quranic injunctions, it is next to impossible to prove a person to be a Zani or Zania, unless he or she voluntarily makes a confession. I am referring to the following verse inthe Quran.

“ Let no m an guilty of adultery or fornication m arry any but a woman similarly guilty, or an unbeliever; nor let any but such a m an or an unbeli­ever m arry such a woman; to the Believers such a thing is forbidden” . (Text 15).

Thus, a marriage between two Muslims is forbid­den, if either has been guilty of Zina or fornication.

The very next verse prescribes heavy punishment for those who accuse a woman of unchastity, but cannot produce 4 witnesses to support their state­ments. It is so difficult to do so, that in the whole history of Islam, there might have been very few such cases, and that seems to be the reason why this cause (Zina) has not been discussed by any ancient or modern author along with other causes of prohi­bition.

SECTION VII.

Abu Hanifa and his Disciples.

Now we have reached a stage where we can conveniently consider the conflicting opinions of Abu Hanifa, on the one side, and of Abu Yusuf, Mohammad and Shafei, on the other. This con­flict can best be described in the words of Iieclaya :

Hamilton translates it as follows in Vol. H p.25 (See Text 41) “ If a man marry a woman whom it is not lawful for him to marry, and afterwards have carnal connection with her, he does not incur punishment, according to Hanifa; but if he be, at the time, aware of the illegality,he is to be corrected by a Tazeer, or discretionary correction. The two disciples and Shafei have said that he is liable to

p u n ish m e n t , w hen he m arries the w om an , being a w are o f the illegality, because, as the co n trac t has n o t been executed in regard to its p ro p e r subject, it is, o f cou ise , vo id ; for here the w o m an is no t a p ro p e r subject o f m arriage , because the p roper sub jec t o f m a n ia g e , o r o f o th e r deed, is a th ing which is a p ro p e r subject o f the effect o f such deed ; now, o n e ol the cflects o f m arriage is the legalising o f g e n e ra t io n ; bu t as the w om an is am o n g those who a re p roh ib ited to the m an, the co n trac t o f m arriage w ith her is consequen tly nugato ry , in the sam e m a n n e r as a con trac t o f m arriage between m an and m an. T h e a ig u m en t o f H an ifa is that the con trac t has taken place in regard to its p roper subject, as the w o m an is a p roper subject o f m arriage, because the p ro p e r subject o f any deed is a th ing which a d m its o f the ends in tended being ob ta ined from it. N o w the end o f m arriage is the p rocrea tion o f ch ild ren , an d to this every d augh te r o f A d a m is c o m p e te n t ; the case therefo re adm its o f the con trac t be ing engaged in w ith respect to all its effects, and o f all its effects being ob ta ined from it ; b u t on a cco u n t o f the p roh ib it ion in the sacred text, the legalisa tion ot the generation is n o t ob ta ined ; and such being the case e rro r is occasioned, as e rro r is a th ing w hich is the appearance o f a proof, and n o t the substance o f one ; and as, in the present case, th e m an has perpetra ted an offence fo r which the s ta ted pun ishm ent, o r hudd is n o t appo in ted , T azeer, o r d iscretionary correction m u s t be inflic­te d .”

Im am Abu Hanifa is one o f the luminaries (or, perhaps, the greatest luminary) that shone on (he horizon of Islamic Jurisprudence. Second century Hijri may be called the Age of Consolidation of Islamic Jurisprudence. A few dates will show my meaning :

(1) N om an Bin Sabil (Imam Abu Hanifa) was born at Kufa 80 A.H, and died at Baghdad, 150 A.H.

(2) Abu Abdullah Malik Bin Anus (Imam Malik) was born at Medina in 94 A.H, and died there, in 179 A.H.

(3) Y aqoob Bin Ibrahim (Imam Abu Yusuf) was born at Baghdad in 113 A.H, and died there, in 182 A.H.

(4) A bu Abdoolla M oham m ad Bin Husain (Imam M oham m ad) was born in 132 A .H , and died in 179 A.H.

(5) M oham m ad Idris (Im am Shafei) was born in Palestine in 150 A. H, and died at Cairo, in 204 A.H.

(6) A bu Abdulla A hm ad Ibn Hanbal (Im am Hanbal) was born a t Baghdad in 164 A .H , and died there, in 241 A.H.

This chronology will show that, with the excep­tion of Im am H anbal who survived till abou t the middle o f the th ird Century A .H ., all others lived in the second century Hijri. This age, in M uslim Jurisprudence, m ay be com pared with the age o f Jurisconsults, in the R om an Law. This was, as has

been remarked, the age of discussion, development and consolidation of the basic principles of Muslim Law. Abu Hanifa was the greatest exponent of the doctrine of Qyas urM*. Tn the field oflstehsan t]ie doctrine by which, inMuslim Jurisprudence, the theory of law is modified, in its application to actual facts) which he partially developed, he was far surpassed by his illustrious disciple Abu Yusuf, for the simple reason that he (i.e. Abu Hanifa) never accepted any post, and, was consequently more of a doctrinaire than a prac­tical judge; whereas, Abu Yusuf occupied the exalted post of Chief Justice of the Abbaside Empire, and, as such, he had to take a more practical and realistic view of the law.

When these great doctors began to propagate the fundamental rules of the Muslim Law, they were confronted with two facts :—

(1) The severity of the Muslim Law in the case o f Zina.

(2) The tender regard of the Muslim Law for the welfare of children.

As regards the latter, rules were framed which threw the responsibility for the maintenance of the children upon their fathers, as far as possible. I shall not dilate upon this point, at this place.

SECTION VIII.

Zina.

As regards Zina, the basic conception of Zina was circumscribed, so that it came to be defined as follows :—

(See Fatawae Kazi Khan page 406. Text 40).“Zina is the penetration of penis into the vagina

of a non-lawful woman. If it is done with the knowledge of its unlawfulness, Hudd bccamc obli­gatory, whereas, if it is done under a doubt, hudd is not imposed.”

The first part defines Zina, and the second part lays down when the Hudd (punishment) is or is not to be awarded.

Hedaya defines Zina as follows :—(p.586). (See Text 39).

“The carnal conjunction which occasions punish­ment is Zina or whoredom; and this, both in its primitive sense, and also in its legal acceptation, signifies the carnal conjuction of a man with a woman in her vagina, a woman who is not his property; because, Zina-is the denomination of an unlawful conjuction of sexes, and this illegality is

un iversa lly u n d e rs to o d w here such conjunction ta k e s place devo id o f p ro p e r ty , e ither ac tua l, or e r ro n e o u s ly su p p o s e d ” (H am ilto n Vol. II p. 19).

T h e te rm Z ina w as so circum scribed th a t u ltim a­tely it w as confined to a sexual co -h ab ita t io n w ith a living, sane, ad u lt w o m an w ho is in her senses, and c o m m its the act with her free volition, p rov ided it is n o t d o n e in an enem y co u n try s

I t is laid dow n in F a ta w a e K azi K h a n :“ I f a sane ad u lt com m its Z in a with a child, o r an

in san e w o m an , o r w ith a w o m an w ho is asleep, H u d d is to be inflicted u p o n the m an , bu t there will b e n o h u d d fo r the w o m a n .”

T h e sam e rule is laid dow n in K ifaya. p. 587 (See Text 42).

“ If a w o m an com m its Z in a against he r will, there is n o h u d d fo r he r accord ing to all ju r is ts .” (See T ex t 40).

“ If a m an com m its Z ina against his will, there is no hudd fo r him, accord ing to the views o f A bu H an ifa and his tw o disciples.” (See Text 40).

“ I f a m an com m its Z ina with a dead w om an , there is a difference o f o p in ion ; according to M edinites ( J u r is ts o f M edina) he is to be punished w ith H u d d , b u t , accord ing to Basrites (Ju r is ts o f Basra), there is n o hudd fo r him , but he should be aw arded some ligh ter p u n ish em n t.” (Text 45).

(H edaya p. 593)“ I f a m a n com m its sodom y with a w om an w ho is

n o t law ful to h im , (outside he r vagina), h e should m ere ly be p u n ish ed .” (See Text 43)

“ If one commits the unnatural act upon a beast, there is no H udd for him.” (See Text 44).

“ If one commits Zina in a hostile countryj ' or and then comes to us (i.e.

migrates to a muslim country no huddis to be inflicted upon him.”

Thus, it will be seen how the scope of Zina was limited. In case, an act came within the category o f Zina, then a terrible punishment awaited the Zani. The Q uran has two verses regarding punish­ment for adultery.

“The woman and the man guilty of adultery, or, fornication, flog each of them with a hundred stripes: let not compassion move you in their case, in a m atter prescribed by God, if ye believe in G od and the last day: and let a party of the believers witness their punishm ent.” Q uran (Text 46)

This punishment is prescribed for free persons. F o r slaves, both males and females, the punishment is reduced by half, according to another verse, dealing with marriages with slave girls.

“ W hen they are taken in wedlock, if they fall into shame, their punishment is half tha t for free w om en.” (Text 47) This verse deals with the case o f a married slave, but it has also been applied to the case of an un-m arried slave. As regards a free married person, male or female, the punishment for adultery is Rajm. Hedayci p. 575 says “ when hudd becomes due, and the adulterer is a married person, he is to be stoned to death .” (See Text 48)

The authority for this terrible punishment is a well known Hadis. This is stated by Kifaya, the com m entary o f Hedaya, on p. 575. It says

“ It is a well known Hadis, and it is the order ( here I take the word J y , in the sense of order ) o f the Prophet, that it is not lawful to take the life o f a Muslim, except for one of these three reasons:(1) apostacy after Islam, (2) zina after marriage and(3) murder o f a person without any right. This Hadis is notorious (this word “ notorious” has been used by text writers in the sense of “ well known or authenticated” with reference to Hadis, and, it is, in this sense, that I have used this term). All the com­panions are agreed upon the imperativeness of the infliction of the Rajm (stoning to death) upon a married person who commits zina. That Rajm is the punishment prescribed by shara for an adul­terer who is married, is established by the highest authorities.” (Text 49).

SECTION IX.

The Doctrine of Shubh.

Tt is this extreme severity in the prescribed punishm ent for zina, which is responsible for the evolution o f the doctrine of Shubh. Leaving aside Rajm, even the method of scourging was such that

the person most often died, because it would conti­nue, untill the adulterer had received the requisite num ber o f stripes irrespective of his capacity to endure it. Since both, the scourging and the Rajm , had to take place in public, they must have had a painful effect upon the minds o f the jurists. The result was that the rule was evolved that there would be no hudd (this word means punishment for unlawful sexual intercourse, and included both Rajm and scourg­ing) if the sexual intercourse took place under the sanction o f (1) marriage, or (2) Milk, (possession) or under (3) shubh. This word shubh has been translated as “ E rro r” by text writers, but the literal meaning o f the word is “ D oub t.” The word “ D o u b t” is more suited to bring into prominent relief the basic and the underlying idea of the legal conception expressed by the word “ Shubh.” In A ta M oham m ad Choudhury v Saiqul Bibi (1910) 7.1.C.820, K aram at Husain J. has also preferred this word (D oubt) to “ E rror.”

Since Milk (possession) is a substitute for marriage, it is impliedly included in the term marriage, in the discussion of the doctrine of shubh. T shall also follow this tim e-honoured practice, for the sake o f brevity.

Accordingly, Muslim Law, like every other sys­tem o f Law, divided women into two categories :

(1) Those with whom marriage was lawful.

(2) Those with w hom m arriage was unlawful,

The Shia jurists stuck to this division, and held tha t a marriage was either lawful i.e. permitted by law, or it was unlawful i.e. it was prohibited by law. The first category of marriage was called Sahih,

and the other Batil. ( J ^ u) The result is tha t the Shia Law of Marriage is quite simple, and is free from the complications introduced into it by the Sunni Jurists.

The Sunni jurists divided into two categories the women with whom marriages were unlawful :

(1) Those in respect o f whom the prohibition was without any doubt.

(2) Those in respect of whom the prohibition was doubtful.

It was in connection with the marriages about the legality of which there was any difference of opinion among the jurists, that the whole doctrine o f shubh or “ D oub t” was evolved and developed. In m odern jurisprudence a mistake o f fact may be a good defence, but a mistake o f law is universally held to be no defence. If a person has acted under a bona fide mistake of law, he can never be allowed to excuse himself on that ground. His ignorance o f law, if bona fide, can only be considered in miti­gation of his sentence, but it can never absolve him from his guilt. If a person has unconsciously been guilty o f the breach of some provision o f the most complicated Act, he will be held responsible, both, for his act and for its consequence. But the Sunni jurists, in their anxiety to save as m any persons as possible, from the

terrible punishment o f Hudd, adopted the rule that if there existed circumstance, which might have created a doubt in the mind of the accused, (lie judge ought to hold that the corpus delicti o f Zina was not complete, and should, on that ground, acquit him. In other words, in the vast majority o f cases, they insisted upon the existence of “ animus delicti” in the accused. If there were found any circumstances which might have created any doubt in the mind of the accused, they would give the benefit o f doubt to the accused, who would, consequently, escape the infliction of Hudd. Since this doctrine o f “ D o u b t” was evolved and developed to save a person from H udd, it is discussed by authorities (ancient texts) in Chapters on punishments. See H edaya Vol. II, pp. 586— 588; Kazi Khan Vol. 11 pp. 406— 407 Ruddul M uhtar Vol. Ill pp. 231—-334.

Im am Abu Hanifa goes furthest in the m atter o f giving the benefit o f doub t to the accused. I shall discuss his doctrine in the last. First I shall discuss those cases of doubt which arc recognised by all.

Shubh, according to Hedaya is o f two kinds : (See Text 50) (1)

( t ) J or 34-^” i.e. a doub t inthe Act. This arises in those cases in which a man mistakes an illegal carnal conjunction for a legal one. To constitute this kind o f doub t, it is necessary th a t the mistake should have operated in the mind of the accused who is, consequently, under such a misapprehension. It is no t in every case th a t

the accused will be allowed to plead this doubt. There are 8 specified cases in which it can be pleaded i.e. in cases where a man had carnal intercourse with

(1) The female slave of his own mother(2) The female slave of his own father.(3) The female slave o f his own wife.(4) The female slave of his own master (with

respect to a male slave).(5) The female slave, delivered as a pledge, with

respect to the receiver o f such pledge.(6) An Umm-e-Walad, (i.e. a female slave who

has borne a child to her master) who is in her iddat after emancipation, with respect to her master.

(7) A wife repudiated by three divorces, who is in her iddat.

(8) A wife completely divorced for a compensa­tion, and who is in her iddat” .

In A ta M oham mad v Saiqul Bibi (1910) 7.I.C. 820, at page 822, in the footnote, it is stated, that the case of the slave girl given as a pledge, is not mentioned in the Arabic text of the Hedayah. But I find that it is mentioned in Vol. 11 page 588 line 2

(3 <5 —> I O J J I

In ihe case of such a doubt, the person who has had carnal conjunction with a woman falling underany one of these eight categories, will escapethe H udd, provided he declares “ I conceived thatthis w om an was lawful to me.” If, on the otherhand, he admits that he knew that the w om an was

unlawful to him, he will incur Hudd. The reason why the existence o f a misconception in the mind of the person, is insisted upon, for the non-infliction of the Hudd, is that the act is, in law, a whoredom, pure and simple, although the punishment is dropped owing to a fact which has a reference to the man i.e. a doub t in his mind. Buhr in Vol. V.P. 15 says “ Here the punishment is dropped by the mercy o f G od who forgives the error o f the man. It is not dropped in consequence o f the w om an being unprohibited, as she is undoubtedly prohibited. Because she is prohibited, N asab (parentage) o f the child will not be established, even if he might claim the child, nor will iddat be incum bent upon the woman, and the parties will have to be seperated” . It will be seen tha t this is a case where one is doubtful whether sexual intercourse, in the particular case, is lawful or unlawful, though there is no authority, in the sources o f law, which supports lawfulness. The man mis­takes that for an authority which is no authority. F o r instance, he may suppose that sexual intercourse with the slave girl o f his father, m other or wife, is lawful because he supposes it to be one of her services to which he is entitled. Similarly, he might be in doub t regarding the lawfulness to him, o f his thrice- repudiated wife who is in her iddat; because, he might suppose tha t he can take her back before the expiry o f her iddat, as he can do in other cases o f divorce. Similarly, a male slave might th ink that he possesses a right o f co-habitation with a female

slave, if they are bo th under the “ Milk ( ) or

ownership of the same master. The pledgee may, similarly, be in doubt regarding the nature o f services of the female slave who has been pledged with him.”

This analysis will have shown that each one of these eight cases is such as can possibly raise some doubt in the mind of an ordinary person, and there­fore, the jurists agreed that it should be made a ground for granting him an exemption from the Hudd.

In modern legal phraseology , we may say that an accused person was allowed to plead ignorance

of law in case of an unlawful conjunction with a woman falling under any of these eight categories. If he did so, he would merely escape punishment; but the other results of a valid co-habitation, i.e, the parentage of the child, and the observance of iddat on the part o f the woman, would not follow. A nother important thing should be noticed. The mere ipsi dixit o f the man is considered sufficient. No external evidence was allowed to be admitted to disprove his statement.

(2) ti or i.e. a doubt inthe woman. This kind of error has been held to arise in the following six cases (See Text 50) i.e. where a person had sexual intercourse with

( 1) The female slave of his son.(2) The female slave sold, with respect to the

seller, before her delivery to the purchaser.(3) The female slave stipulated to be given in

dower to a wife, before her delivery to the wife (with respect to the husband),

(4) The female slave held in partnership with respect to any of the partners.

(5) The female slave delivered as a pledge, with respect o f the pledgee.

(6) A wife completely repudiated by an implied divorce.”

(It should be noticed that a female slave delivered as a pledge is placed in both the lists. The reason for this is neither given by any authority nor is it clear).

This does not seem to be an exhaustive list, because Rudd-ul-M uhtar Vol. Ill, p. 231, mentions other instances i.e.

(7) A slave girl who has been obtained as booty, whether the co-habitation with her takes place after she has been brought into our country, or, before.

(8) A slave girl before the purification of her womb has been ascertained.

(9) A slave girl as to whom the purchaser has the option of confirming the sale or o f annulling it (with respect to the vendor).

(10) A slave girl who is the foster-sister o f the master (with respect to the master).

(11) A sexual intercourse by a husband with his wife who has become unlawful to him by apostacy, or by her having had sexual intercourse with her husband’s son, or because the husband has had sexual intercourse with her mother, or with her daughter.

Other instances may also be cited, as will occur to anyone who makes a research.”

On a close scrutiny o f this list, it will appear that the cases of “ D oubt,” mentioned in this second list, are much stronger than those mentioned in the first list (excluding the anomalous case of a slave girl, delivered as a pledge, whose case is common to both the lists).

In the case of “ Doubt in the w om an” the doubt arises owing to the existence of some authority which negatives the unlawfulness o f the woman, like the saying of the Prophet V d U j I “ You and your property are for your father,” and, therefore, if a person has had sexual intercourse with his son’s female slave, he will not incur hudd. In this class of doubt, it is immaterial whether the m an knows the sexual connection to be unlawful, or, supposes it to be law­ful, because, in consequence of the existence of the authority, the doubt exists, in reality, in the lawful­ness or unlawfulness o f the act. ft is equally imma­terial, whether the person is, or is not, aware of the authority. Since the doubt arises by virtue of the existence of some authority, the Nasab or parentage can be established in the father, because the sexual intercourse, in this case, is never considered as whore­dom, under any circumstance e.g. even when the m an is aware of its unlawfulness. As a necessary corollary to its not being Zina, there is no hudd in this case, even though the man actually confesses that, as a m atter o f fact, he knew that the woman

was unlawful to him. Parentage will be established in the father, in this case, provided, he claims the child. The w om an will be entitled to dower, and will have to observe iddat. But the parties will have to be seperated.

Therefore, to sum up, it may be said that, in the Shubh-Fil-Fail, the sexual co-habitation is purely zina, except that there is no hudd ; whereas, in the case o f Shubh-Fil-M ahal, the position o f the parties is like what it would be in a regular marriage, except that (1) they will have to seperate and (2) the child will be legitimate, only, if the father claims it.

N o great complications could, or did, arise in the Sunni Law of M arriage, because of these two kinds o f D oubts. All the complications and uncertain­ties, in the law, are the result o f the third kind of Shubh which was form ulated and propounded by A bu Hanifa.

Im am Abu H anifa was o f the opinion that “ D o u b t” is o f three, and not only o f the two kinds mentioned above. This third category o f doubt, he called Jk—■ <j “ D o u b t in M arriage.” He opined tha t a contract o f marriage is a sufficient ground for Shubh; although, the illegality o f such a marriage be uni­versally admitted, and the man, entering into such a marriage, be aware of its illegality. According to him, if a m an marries a w om an w hom it is not lawful for him to marry, and, under colour o f such a marriage, has carnal connexion with her, he is not to be awarded the H udd, but, if at the time o f the

contracting of the marriage, he was aware of its illegality, he is to be awarded “ Tazir,” L-i-*-") or, a lighter punishment, at the discretion of the judge. He pushed this doctrine to its logical ex­treme, by holding that it was totally immaterial who the woman was, with whom the man had con­tracted the marriage. Fatawai Kazi K han gives his form ula as follows .—

“ There would be no Hudd, if the man said that he thought that the woman was lawful to him ; but H udd would become obligatory, if he said that he knew that the woman was unlawful to him ”

(The word is which is not the same thing

as “ Belief,” The word 6-^ means just anidea, right or wrong, and whether it is based upon a sound or unsound reasoning. Therefore. 1 have translated it as “ T hougt,” and not as “ Believed,” (See Text 114).

In o ther words, according to Abu Hanifa, the liability or non-liability to Hudd depended entirely upon the mere statement of the man, irres­pective of the preposterousness of the act itself. The modern canon of Equity ‘Res ipsa loquiter” did not apply. It may be, that the common Mus­lims, in his were more truthful and morereligious-minded than they are now-a-days, and if any one of them, in a fit of ungovern­able passion, committed adultery, he would rather expiate it in this world by suffering Hudd, than suffer for it in the next world. But a

comprehensive rule of the Muslim Law which is meant to be universal and ever-lasitng, should be such as to hold good al all places and in all times. Fatawae Qazi Khan gives at length the cases where, according to Abu Hanifa, there would be no Hudd. it will be needless to enumerate them all, after mentioning that, according to him, a mere form of marriage will save a man from Hudd, even if he contracts it with a woman related to him by ties of consanguinity, affinity or fosterage. In fact f*(mother),1 ' ( s i s t e r ) ^ ^ (d a u g h te r )^ (father’s sister and (mother’s sister) are expressly mentioned in this connection. (Text 53) It does not require very,m any arguments, to prove the unsoundness of this view. Human nature itself revolts against such connections . Even in his own time, his views were challenged on all sides and from all quarters. His own favourite and illustrious disciples, Abu Yusuf and Mohammad, controverted them. This opinion of Abu Hanifa would have been long buried into oblivion, but for the*fact that the arguments advanced for and against this view introduced, in their turn, a further complication in this branch of the Muslim Law. Tn order to understand this further complication, it is necessary to go deep into these arguments. This controversy has been summarised by Heduyah, the relevant extract from which has been given above. (See pp. 4-2—43)

It may be summed up as follows :1. The argument of Abu H anifa : “The contract

of marriage has taken place in regard to its proper

sub jec t, as a ( I ) w o m an is a p ro p e r subject «>f m arr iag e (2) because ihe p ro p e r subject ol any deed is a th ing which ad m its o f the en d s in tended being ob ta in ed from it, (3) the end ol' every m arriage is the p ro c rea tio n o f ch ild ren , and (4) to this every d a u g h te r o f A d a m is com peten t. T herefo re , the case adm its o f the co n trac t being engaged in, w ith respect to all its effects, and o f all its effects being o b ta in ed from i t ; bu t on accoun t o f the p roh ib it ion in the Q u ran , th e legalization o f the genera tion is n o t ob ta ined , a n d such being the case, e r ro r is occasioned, as e r ro r is a th ing w hich is the ap p earan ce o f a proof, and n o t th e subs tance o f it, and as, in the present case* the m a n p e rp e tra ted an offence fo r w hich th e s ta ted p u n ish m en t o r H u d d is no t appo in ted , Tazeer, or a d isc re tionary punishm ent, m ust be inflicted.” A ccord ing ly , in the view o f A b u H an ifa , w henever a co n trac t o f m arriage takes place w ith any w o m a n , w hatsoever, the H u d d d rops (a) w hether th e m a r r ia g e is lawful o r un law fu l, and (b) w he ther there is a consensus o f op in ion a s reg a rd s to its unlawfulness, or, th e re is a difference o f op in ion am o n g the ju r is ts on th is p o in t (i.e. on the po in t w hether it is law ful o r u n la w fu l) , and (c) w hether the m an know s it to be unlaw ful, or, does not know it to be so.

T h e m an will have to pay full dow er to th e w o m a n , w hatever it m igh t be, if he co-hab its w ith

her.II. The views of Abu Yusuf, M ohammad and Shafei.

“ The m an is liable to punishment whenjhe marries the woman, being aware of illegality because, as the contract has not been effected in regard to its proper subject, it is, o f course, void; for, here, the woman is not a proper subject o f marriage, because the proper subject o f marriage, or o f any other deed, is a thing which is a proper subject o f the effects of such deeds; now, one of the effects o f marriage is the legalising of the generation; but, as the woman is am ong those who are prohibited to the man, the contract o f marriage with her is, consequently, nuga­tory, in the same manner as a contract o f marriage between man and man. Consequently, according to them, when a man contracts a marriage which is unlawful, according to all the lawyers, there can exist on doubt, and the man will be liable to Hudd, if he knew it to be unlawful.

Consequently, according to them, if a man marries a woman who is unlawful to him and co­habits with her :—

(a) He will not have to pay her any dower, but will suffer Hudd if he did so knowingly.

(b) If, on the other hand, he did so, unknowing­ly, he will escape the Hudd, but will have to pay her dower.

If we analyse the two conllicting views, we find that the basis of the conflict is :

Does such a marriage create a doubt, or, does it no t?

The answer to this question depends upon a further question.

Is the marriage contracted with a woman who is a “ M ahal” / e. a “ fitting subject o f marriage,” or with one who is not so?

The answers of the two schools to this second question, with their arguments, are as follows :

(1) According to Abu Hanifa, the marriage is contracted with a woman who is a “ fitting subject o f marriage” , for the fitness does not mean that the marriage with her makes sexual intercourse lawful: but it means that the woman is ‘fit for the end of m arriage” i.e. procreation, and such a fitness does exist.

According to Abu Yusuf etc, the marriage is contracted with a woman who is not a “ fitting subject o f m arriage” because “ a fitting subject of marriage” means a woman with whom sexual intercourse becomes lawful by marriage. This does not happen in a marriage with a woman who is prohibited under all circumstances. W hat emerges from a recital o f Nikah with her is the shadow of a marriage, and not the substantive marriage itself.

(2) In dealing with the fitness for marriage, the two schools look at it from different points of view i.e.

(a) A bu H anifa, in calling her a “ fitting subject o f m arriage ,” intended to say tha t she was a fitting subject o f m arriage in the abstract, and no t with reference to the particular m an in question, and it

is for this reason that he says that she is fit for the end of marriage i.e. procreation.

(b) Abu Yusuf etc, in saying that she is not a “ fitting subject of marriage,” mean that she is not so with reference to the particular man in question i.e. she is not a “ fitting subject of marriage with this particular m an.” It is for this reason that they say that she cannot become lawful by marriage to the man in question, though she may be lawful to some one else by marriage.

Bahur, Vol. V. pp. 16, 17, says, on the authority of Khulasa, that “ the Fatw a is according to the views of Abu Y usuf etc, on the ground that a doubt is possi­ble only when the lawfulness o f the sexual intercourse is possible, in any way, (because it is the lawfulness o f the sexual intercourse which should be in doubt), but the lawfulness o f the intercourse with her is not proved in any way. I f such lawfulness had been proved in any way, a co-habitation with her would have established the legitimacy of the child, and the woman would have been entitled to her dower, and would have to observe iddat” .

The author of Kashf expresses himself as follows:

“ Similarly, a marriage with one’s own maharim is negatived, in as much as a “ fitting subject of marriage” is absent. T hat being so, the term “ N ahi” (prohibition in G od’s command) “ D o not m arry those women who were married by your fathers,” is a m etaphor for negation. Kashf Vol. I p. 283.

Again, in Tauzih Talweeh p. 297 it is stated :

If it is admitted that the marriage is prohibited, it follows that the prohibition renders it void because all are agreed that the effect o f a prohibition is unlawfulness, ( ^ ) “ H urm at,” and as marriage is a contract prescribed for making sexual inter course lawful, and as lawfulness is taken away (by the prohibition) it becomes Batil (void).”.

With the utmost respect for the great founder o f the Hanafi Sect, it may be pointed out that his view does not appeal to reason, and many arguments may be advanced against his views :

( I) His argL,menl that every woman is a “ fitting subject of marriage,” because every daughter of Adam is “ fit for the end of marriage” i.e. procrea­tion, may, with perfect logic, be pushed one steo further. If the main, or the sole, object of the crea­tion o f “ A dam ’s daughter” is procreation, why must there be the intermediate link of a farcical ceremony o f marriage at all. If a man can, with perfect impu­nity, have a sexual intercourse with any woman (be she his own mother, daughter or sister) under the cover of a marriage (which, admittedly will not amount to a legally permissible marriage) because, he is thereby furthering the object for which she is created (i.e. precreation), what difference will it m ake if he is allowed to further the same object (i.e. procreation), without going through this farce.A man may be allowed to have a free sexual inter­course with any woman he likes.

(2) I f the question of a woman being a “ fitting subject o f marriage” is to be considered in the

abstract, and not with reference to particular indivi­duals, then there is no need for any law restraining polyandry or regulating polygamy. If a woman is created for procreation, and any act that furthers the object o f her creation {i.e. procreation), is to be tolerated, then two consequences follow :

(1) So long as conception results, she may be carnally known by any body. If the presence of a husband is to be no bar to a co-habitation with her, under the farce of marriage, it should be no bar even in the absence of this farce.

(2) Conversely, if conception cannot take place, either because the woman is barren, o r; is past the child bearing age, a co-habitation with her should not be allowed, because it will not further the end which is the object of her creation. We may go one step further. Just as Hitler killed German lunatics etc, during the Second World War, because they were a burden upon the economic resources of the country, similarly, such a woman may be killed, because she can no longer further the object o f her creation (i.e. procreation).

In fact, Abu Hanifa has lost sight o f the dis­tinction between a biological act and a legal act. Tn trying a man accused of Zina, a judge is to look to the fact whether the woman with whom he had sexual connection is, or is not, prohibited to him. He cannot go into the question whether the woman is, or is not, prohibited to some other person. Once he begins to do so, there will be an end o f the law

of marriage, because, in that case, no one can be convicted, on a charge of bigamy, or, of polyandry.

(3) Again, the “ fitness for the ends of marriage” i.e. “ Procreation,” is a physical fitness, whereas, the judge is to confine himself to her legal fitness, in respect o f the accused before him. Physical fitness depends upon factors which can have no relation to legal fitness. Physical fitness originates from nature, whereas, legal fitness is the creation o f the law-giver.

SECTION X.

Evolution of the conception of Fasid Marriage.

The opinion of Abu Hanifa, as mentioned above, regarding the legal consequences of Shubh-Fil-Aqd ( was dissented from, even, byhis disciples, and Abu Yusuf, as the Qazi-ul-Quzzat, gave effect to his own practical view on the subject. Leaving out this Shubh-Fil-Aqd (-^1 <3 the very evolution of the doctrine of Shubh, and its division even into the two categories of Shubh- Fil-Fail and Shub-Fil-Mahal, gave rise to another form o f complication in the Law of Marriage. This doctrine o f Shubh, and still more, its division into

the two catagories mentioned above, made the M us­lim Jurists familiar with the notion that there might be forms of marriages which were neither entirely Sahih, (i.e. such as were capable o f producing all the legal consequences o f a marriage), nor entirely Batil (i.e. such as were entirely devoid o f all such consequ­ences).

Early jurists made no distinction between the words “ Batil” and “ Fasid” , and used the two words indiscriminately. Often they used the two words in connection with the same matter, in the same sentence. Take, for instance, Kazi Khan. Discussing the case of marriage with two sisters, he expresses himself as follows:*0 j Is L.3 .3. '<Ll J._~i j l*. I 3 y 3

a 0 1 j J o 'a -t*J I U.^Lc. (j j ;>—> 3

A little later he writes1 J I—a- I t=5C_) o \ ^—0 I r- ^ 3

“ Unlawfullness (H urm at) may be taken to mean “ butlan” ( )y the state o f being batil, orfasad ( )f the state o f being faisd, for there is no difference between them in a marriage, as has been stated in the majority o f reliable works. Therefore, the statement made in the Imadi that they differ as to a marriage with the m aharim , some holding it to be batil, and others holding it to be fasid, is not free from difficulty” (See M ajmaul A nhar V.T p.323).

“ Unlawfulness (Hurmat) may be taken to mean either “ butlan” (being batil) or “ fasad” (being fasid) for they are synonymous. The statement in the Imadi that there is a difference of opinion regard­ing a marriage with the maharim, some holding it to be fasid and others batil, is not free from difficulty. (Lubab V.I. p. 323).

“ There is no difference between fasid and batil marriage in a matter other than iddat" (Ruddul M uhtar V.I I. p. 574) (See Text 63).

Later on, these two terms “ Batil” and “ Fasid” were given fixed, technical meanings. “ Batil” marriage came to mean a marriage, the existence and non existence of which are alike.

“ By Batil is meant one the existence of which is like its non-existence, and, therefore, in a marriage with prohibited women, neither Nasab is established, nor is Iddat obligatory.”

Fasid marriages came to mean those which were in between Sahih and Batil marriages.

Then, there arose two other factors which intro­duced further complication into this branch of law which was already enough confused. The first was the character of the jurisconsults who were developing Muslim Law by means of their writings. Muslim Law closely resembles Roman Law, in this respect, that both systems of jurisprudence are the result o f the life long work of jurists who made the study and teaching of law their main occupation in life. But, whereas, Roman Jurisconsults constituted

a class by themselves, and were distinct from the class of pontiffs, and had no religious sanctity atta­ched to them, the Muslim Jurisprudence was evolv­ed and developed by a body of persons who were, at once, jurists and religious preceptors. Each one of them had his own line of followers who regarded every word of their or, preceptor, as unques­tionable, and as one which had to be accepted with­out any argument. If any portion of their writings was illogical or difficult to understand, their follow­ers thought that their own intellect was defective and could not comprehend the eternal truth expressed by their Shaikhs.

The second peculiarity of the Muslim legal literature has been that there have been commen­taries on books, then commentaries on those com­mentaries, and again, their commentaries. Each commentator has thought it his duty to explain and elucidate the words and phrases of the text, of which he was writing the commentary, and this he did, not in a spirit of intelligent criticism, but in a spirit of devotion, reverence and loyalty to the author of the text which was little short of bigotry. The result is that, today, we find that (e.g. in their discussions of Batil and Fasid Marriages) the later commenta­tors scarcely argue upon the text of the Quran which is the origin of the whole law. Emperor Justinian forbade the composition of any epitomes of his corpus juris civilis, in order to avoid this kind of danger. But his interdiction remained a dead letter, and we find that, there arose a succession of epitomes,

o n e o f the o th e r , until the m ain w o rk was safelyc o n s ig n e d to the n o o k o f ob liv ion . T h e sam e th ingh a p p e n e d in the M uslim w orld , bu t in a n o th e r way.H ach c o m m e n ta to r w ould explain an d illustrate th e w o rd s o f the b o o k , o f which he w as w rit ing the c o m m e n ta ry , and try to jus tify every expression o f o p in io n fo u n d in his text. T h is m en ta li ty o f the c o m m e n ta to rs is responsib le fo r the in tro d u c tio n o f a sort o f dialectic ism in the M uslim Ju risp rudence , a n d fo r the perversion o f m any o f the sa lu to ry ru les thereof.

A fter the accep tance o f the no tion o f an in ter­m ed ia te class o f m arriages which fell short o f the r e q u i r e m e n t s o f a valid m arriage , bu t which were no t en tire ly devoid o f all effects and consequences th e re ­of, th e ju r is ts began to call such m arriages by the techn ica l n am e o f F asid m arriages, as opposed to Batil m arr iages w hich were devoid o f all such c o n ­s e q u e n c e s . W hen the 19 classes o f p roh ib it ion were e x a m i n e d a n d analysed , it was found th a t they i n c l u d e d ( 0 som e classes o f w om en w ho were per­m a n e n t ly p ro h ib ited i.e. w om en in respect o f w hom th e p roh ib it io n w hould a ttach all th rough th e ir lives, an d was incapable o f being rem oved u n d e r any c ircum stances w h a tso e v e r ; and th a t th e re w as (2 ) a n o th e r class o f w om en w ho were te m p o ra r i ly p roh ib ited i.e. w om en in respect o f w h o m th e p ro h ib it io n was capable o f being rem oved, o n th e h a p p e n in g o f som e event. A t first, all m a rr iag es w hich were no t Sahih, i.e. valid in all re spec ts , w ere indiscrim inately called Batil or

Fasid. The verbs a---- * - J_k_ and, their nouns,were applied to them, without the

assignment o f any technical meaning to any o f these words. But the later com m entators began to distinguish between these two words, and, conse­quently, these words assumed their technical m ean­ings. After this technical meaning had been assign­ed to these words, when the later jurists studied the works of the earlier jurists, and they came across with these words, they interpreted these words accor­ding to the technical meaning assigned to them in their own times, without caring to notice that, in the writings of those earlier jurists, these words were given no such technical meaning. So that, v e find, that these two terdencies (assignment of technical meanings to the words Batil and Fasid, and the discussion of the cases of prohibition under two distinct classes o f permanently prohibited women and temporarily prohibited women) jointly contributed to the introduction o f a new terminology. Some authors applied the term “ Batil’1 to the permanently prohibited marriages, and the term ‘‘F asid” to those marriages which were tem porarily prohibited. The application of this new nom en­clature is responsible for all the confusion which has crept into this branch of law.

SECTION XI

Classification of Prohibited Women

N ow let us take stock o f the position, as it became, after these new developments had taken place. The new division and sub-division of the prohibition were as follows :

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As regards these prohibitions, Abdul Rahman states, in A rt 20, page 15, as fo llow s: “ For the vali­dity of marriage, it is necessary that there should be no prohibition affecting the parties." Then, in the following Art, he says “ Prohibitions are either perpetual or tem porary,” In other words, he puts both these categories o f prohibitions on the same level, qua, the validity of the marriage.

The same is the opinion o f the author of Dur- ru l-M ukhtar as given in Raddul-M uhtar Vol. II p .984. It is as follows : “ Whenever it is unlawfulthat a w om an should be married to a man, it be­comes necessary tha t the prohibition should be removed (in order that the marriage, when it takes place, should be valid) e.g. the marriage of the wife's sister, or, o f four women in addition to the wife.”

All jurists are unanimous in holding that a marriage with a woman belonging to the first cate­gory (i.e. permanently prohibited women) is Batil i.e. null and void, and does not give rise to any legal incidents o f a valid marriage. A sexual co-habi- tation with such a woman, even under the colour of a so-called m arriage, is Zina, an absolute whoredom. The w om an will not be entitled to any dower, nor will an iddat be incumbent upon her. The child o f such a union will be illegitimate, and can not, under any circumstances, whatsoever, be legitimised. The view of Im am A bu Hanifa has been finally and absolutely discarded. The fact tha t the prohibition regarding a wife’s daughter is qualified, and not absolute, and springs up, not upon

marriage of her mother to the man, bu t upon their actual sexual intercourse, has, strangely enough, been scarcely discussed by any text-writer. This is not the place for its discussion either. I have just touched the point, and will leave it at that.

The first question that naturally suggests itself, is that o f nomenclature. Can the marriages that are merely temporarily prohibited, be called Fasid? Tt is argued that in all the seven cases of temporary prohibitions, the prohibition is removable, and a change of circumstances can, and does, make the temporarily prohibited woman lawful. These changes of circumstances are as follows :

(1) A marriage with a M oattada In this connection the term («■*=*-») is used to denote two classes of women : (a) Those who have beendivorced by their previous husbands, and who have not completed their periods of Iddat. The prohi­bition with respect to them, lasts only so long as they do not complete their periods of iddat. There­fore, in their cases, the prohibition is automatically removed by the efflux of time, (b) Those who were previously married to the man in question himself, and were thrice divorced by him. In their cases, the prohibition can be wiped out on the happening of five events. (1) They complete their iddat after the divorce (2) They marry some other persons(3) Those persons actually co-habit w ith them (4) then those persons divorce them (5) and, lastly, they undergo a period of iddat.

(2) Marriage with a married woman. In hercase, the prohibition will be removed when (1) her husband divorces her and (2) she has completed her period of iddat. In this connection, I have left out the case of a married woman who has come into a Muslim country ( j I ) iroin an enemycountry ( j 1 because her case is absolutelydistinctive.

(3) Marriage with a fifth wife, in the life time ot four wives. The prohibition in her case can be removed by the man divorcing one of his wives (and according to the prevalent view, the man must wait during the period of the iddat of the wife he has divorced).

(4) Marriages which are prohibited owing to unlawful conjunction. It means, that certain cate­gories o f women can not be held together in marriage. These unlawful conjunctions arise in two' ways :

(i) Where one marries two women who are so related to each other that, if one of them were a male and the other a female, they could not have inter-married with each other, on account of the bars of consanguinity, affinity or fosterage. (There is only one exception to this rule. A man can, simul­taneously, marry a woman and the daughter o f her first husband, by another woman). Therefore, the rule is that if a man marries a woman, he can not, subsequently, marry another woman who is related to her wife, within prohibited degrees, by blood, affinity or fosterage. But this bar can be remov­ed by the m an divorcing his wife.

(ii) The other case of unlawful conjunction (which can not arise now) is, where a free man is married to a free woman and, then wants to marry a slave woman. He can not do so, unless he divorces his wife. But this prohibition will not arise where(a) the man is himself a slave i.e. if a slave man is married to a free woman, he can, subsequently, marry a slave girl also (b) where a free man is married to a slave girl, and he, subsequently, contracts a marriage with a free woman.

(5) Marriage with a Mushrika (a polytheist), like an idolatress, or a star-worshipper, or a Maju- siah. Such a woman is prohibited to a Muslim male.A Muslim female is prohibited to marry any non-Muslim. This bar will be removed if the Mushrik or the Mushrika embraces Islam.

(6) Marriage with two sisters. This case, logically, can fall under the fourth category (of prohibition by unlawful conjunction) mentioned above. But it is seperately treated by jurists as a distinct class by itself, because it is mentioned in the Quran itself; whereas, the cases of prohibition by unlawful conjunction, as mentioned above, are not mentioned therein. Besides this, the case of two sisters is slightly different from those cases. Here, the bar can be removed by the divorce of the other sister (and according to some, by the passing away of the period of iddat of the divorced wife).

(7) One can not marry with one’s own slave. This bar can be removed by the emancipation of

the slave (whether male or female), and then a valid marriage can be contracted with such a slave.

Thus, it will be seen that, in all the seven cases, the bar is such as can be removed at some time, and on the happening of certain events. It is instruc­tive to note how this division has been mentioned by the ancient text writers.

(1) Tafsir Kabir says (Text 94).“ God has ordained regarding the prohibition of

14 classes o f women (i.e. in verses 4 .4 .1 and 2) : seven of them on account o f Nasab, and the other seven, on grounds other than Nasab (Tex 94).t

(2) Hedayah gives no classification, but pro­ceeds to discuss individual cases, one by one.

(3) Fatawae Qazi Khan says (See Text 35).

“ Prohibition regarding marriages are of two kinds: permanent and non-permanent. Permanentprohibitions arise from consanguinity, fosterage and affinity; and those M oharram at (prohibited women) whose prohibition is not o f a permanent nature are seven in num ber.”

It must be carefully noticed that his class of is also included among and the divi­

sion is clearly on the basis of the time during which their prohibition will last, and it has no reference, even by implication, to the existence of any dif­ference in the resulting incidents o f a union with women o f the two classes mentioned here.

(4) D urru l-M ukhtar says (See Text 36).

“ Causes o f prohibition are several: Consanguinity, Affinity, Fosterage, Conjunction, Ownership, Polytheism, and marrying a slave girl upon a free woman. Thus they are seven. The au thor has discussed them in this very order. There remain the cases of thrice-divorced women, o f married women, and o f those who are observing iddat on being divor­ced by another man. The au thor has discussed them in the chapter on “ Rijat” (Taking back).” (Note.I have given the sense of the last sentence to make the meaning clear. Arabic language is often too comprehensive, and its literal translation into another language will sometimes, as here, make the meaning obscure).

(5) Raddul M uhtar (commentary of Dur- ru l-M ukhtar). It explains the three terms

U=-> and then adds j^ A n d these three are prohibited for ever.

It then proceeds to discuss other cases.

(6). Abn Arabi quotes Ibn Abbas as follows : (Text 54).

Ibn A bbas says tha t in this verse (4.4.1 and 2), G od has prohibited seven (classes o f woman) on account o f N asab, and seven on account o f Affinity.

(7) Fataw ae Alamgiri has a new chapter on“ W om en who are unlawful or prohibited : Ofthese there are nine classes.”

T hen it deals with all these classes, one by one. These classes consist of women prohibited by reason o f (1) N asab (2) Affinity (3) Fosterage (4) Unlawful

conjunction (5) Marrying a slave upon a free woman (6) Ownership (7) Polytheism (8) Property and (9) Divorce.

This short re-capitulation will show that all these important authorities have put the prohibition regarding all these various classes of women on the same basis.

One factor is common to seven classes of women mentioned above. The bar of prohibition, in their cases, can, under certain circumstances be removed. In other words, a marriage with any one of them is not an impossibility, in the same way, as one with a mother, a daughter or a sister is utterly impossible. This mere possibility of marrying one of them has given rise to a very great divergence of views among the Sunni jurists. One school of jurists holds the view that because a marriage with them is possible, whereas, a marriage with a woman pro­hibited on grounds of Nasab, Affinity or Fosterage is impossible, there is necessarily a basic difference in the nature of the prohibition regarding these two categories of prohibited women. In the first case, since the prohibition is permanent, the marriage is eternally impossible, and there is no chance of its ever becoming per­missible, under any combination of circumstances whatsoever. Therefore, such a marriage should be treated as absolutely null and void, and no legal results should flow from any union with a woman who is permanently prohibited. Any sexual co­habitation, under the guise of such a marriage,

sh o u ld ren d e r the parties to H u d d , if the act is done know ingly . In the case o f w om en w ho are no t p e rm an en tly p roh ib ited , the position , in the op in ion o f this school, is different. T h e re the p roh ib it ion is m erely tem p o ra ry , an d is due to som e accidenta l cause. T h e rem oval o f this cause will change its effect, an d the p roh ib it io n will be w ashed out. T here fo re , in its essence, this p ro h ib it io n {i.e. the te m p o ra ry one) is different f rom the o th e r k ind o f p ro h ib it io n (i.e. the p e rm an en t one). A m arriage , in this case, m ay be im probab le , bu t it is n o t im possi­ble. T herefo re , if som e such m arriage is, in fact, c o n trac ted , it will no t, and can not, p a r tak e o f the n a tu re o f a m arriage with a perm anen tly p rohib ited w o m an . Even if it is p roh ib ited today , it m ay becom e perm issib le to m o rro w by the change o f c ircum stances. T herefo re , it shou ld n o t be treated as entire ly an d abso lu te ly null and void ab initio. Such a m arr iag e should be d iscouraged, b u t if, in fact, it has been gone th ro u g h , it should be allowed to p ro d u ce som e legal results. In o the r words, th is school applied , to this k ind o f m arriage, the d o c tr in e o f fac tum valet, in a modified form .

N ow , since the ju ris ts o f this la tter school, gave an in te rm edia te position to m arriages w ith w o m en w ho were tem porarily p roh ib ited , and p laced them in betw een m arriages which are either abso lu te ly Sahih o r absolutely null an d void, and since they had becom e acquain ted w ith the new te rm in o lo g y o f Sahih, Fasid and Batil m arriages, they began to apply the term fasid to a m arriage

with a w om an who was temporarily prohibited. The next step was that when the word “ Fasid” was given a technical meaning and a “ Fasid M arriage” was held to produce certain legal consequences, the same legal consequences were allowed to flow from a marriage with a temporarily prohibit­ed woman when a marriage with her was given the appellation o f a “ Fasid m arriage.”

It is shrouded in mystery how the term “ Fasid” crept into the legal terminology to denote marriages which are neither entirely Sahih nor entirely Batil. My own conjecture is that it might have been used to denote marriages which arc not prohibited expressly, either by Q uran, or, by some authentic Hadis, but which were considered defec­tive, on the ground that they contravened some salutary provisions of the general law e.g.

(a) The marriage of a m inor contracted without the consent of his lawful guardian. Such a m arri­age is valid, though it depends, for its operation, on the consent o f his guardian which, even if given ex post facto, will retrospectively validate the h ither­to defective marriage.

(b) Similarly, the marriage o f a slave depends, for its validity, upon the consent o f his or her master, and, in the absence of such a permission, it is defective.

Absence of the requisite consent in the afore­m entioned two kinds of marriages will create in them a lacuna which will m ake them defective. Possibly such marriages might have been called

' ‘Fasid,” in the first instance, and, later on, the term might have been applied more extensively to indicate marriages which were neither Sahih nor absolutely Batil. Ibn A rabi had perhaps a similar idea, at the back of his mind, when he wrote. (See Text 55).

“ The fact remains that, in respect o f a Nikah-i- Fasid, either the jurists will be unanim ous on the question o f its invalidity, or they will differ on this point. If they are unanimous, such a marriage will have no Hukm or Tahrim (i.e. it will have no effect o f any kind). The existence of such a nikah will be like its non-existence. If, on the other hand, the jurists hold conflicting views regarding it, then, also prohibition will attach to it exactly in the same manner. As regards the vagina (here co-habitation is meant), if there be any doubt in the question of its lawfulness or unlawfulness, the unlawfulness will prevail.” (p. 154).

W hatever be the origin of this term “ Fasid,” and whatever be the circumstances under which it came to be applied to a marriage with a temporari­ly prohibited woman, the fact remains that these marriages began to be described, by certain jurists, as “ Fasid.” The legal incidents of a fasid marriage were declared to be tha t the husband was bound to pay dower to the woman, if he had enjoyed her, the w om an had to observe iddat and the off-springs would be legitimate.

The other school of jurists does not draw any distinction between a “ Permanent Prohibition” and

a “ T em porary Prohibition.” Their arguments are as follows :

(1) The distinction between “ Permanent P ro­hibition” and “ Temporary Prohibition” merely gives prominence to the fact that, in the case of permanently prohibited women, the physical con­ditions on which the prohibition rests, are permanent i.e. they last as long as the woman lives; whereas,

in the case of temporarily prohibited women, they are tem porary i.e. subsequent events can put an end to the physical conditions of prohibition. In the latter case, a man, who has set his heart upon marrying a woman, has a chance, however remote it might be, o f lawfully marrying her, if he waits long enough; whereas, in the first case, he has no such chance.

(2) The distinction between “ Permanent Pro­hibition” and “ Tem porary Prohibition” is not, and cannot, be intended to imply tha t the legal result o f the prohibition, in the first case, is different from its legal result, in the second case; because it is the prohibition by the law-giver, and not the duration of the physical conditions on which the prohibition rests, that makes the prohibited act illegal and void.

(3) In a majority o f cases, legal prohibitions are based on physical conditions tha t change; and a possible change in them cannot alter the con­sequences of the prohibitions. This proposition may be illustrated by very m any examples e.g.

(A) Muslim Law forbids sexual co-habitation with an _? l (a woman who is neither lawfully wedded nor lawfully held as a slave girl). A mere possibility o f a change in her physical condition, in futuro, (her marriage with the man in question) will not. and can not, change the effect o f the prohibi­tion, in praesenti, and the mere fact that she may be married, in futuro, will not take away anything from her H urm at, in praesenti.

(B) Both, under the Muslim Law, and under the Pakistan Law, a contract by a minor is void (Mohori Bibee v Bhurmodas 30.1.A .114); but nobody can assert that the possibility of his attaining majority converts his void contract into a contract which is not void.

(C) Similarly, a lunacy may be permanent or temporary. A contract entered into during either kind of lunacy is void. But it will be absurd to assert that a contract entered into, during a tem porary lunacy, stands on a different footing from the one which is entered into during a permanent lunacy, because, in the case of a temporary lunacy, the physical condition on which the prohibition of law rests, is liable to change.

(D) Suppose a man H has a son S and he marrias W. If S were to co-habit, or, even kiss, or, look with desire at the private parts o f W, then, under the Hanafi law, W will become unlawful to H. But the mere possibility of her becoming unlawful, in futuro, on the happening of a future uncertain event,

can not make her unlawful, in praesenti. Though it is a case of a woman who is lawful, in praesenti, becoming unlawful, in futuro, on the happening of a future event, the basic principle of law, in this case, is also the same i.e. in determining the nature of a legal transaction, one has to look to the time at which it is entered into, and not to any subsequent time.

(E) If H marries W who has a daughter, D, and a mother, M ; then M wili become unlawful to H, the moment he marries W; but D remains lawful to him, untill he actually co-habits with W. During the interval between the time of his marriage and the time of his co-habitation with W,D will remain lawful to H, in the sense that he can divorce her mother M, and marry her. But the moment H co-habits with M, he can never marry D after that. Therefore, the mere fact that, in all probability, D will become permanently prohibited to H,on the happening of a future event, (i.e. H ’s co­habitation with M), will not alter the legal position of D, and make unlawful her marriage with H, in the interval between the time of marriage and the time of H ’s co-habitation with M. The reason is that a person’s legal status is determined according to the conditions actually prevailing at the time of such determination, and the previous or subsequent events can have no effect upon, nor can they influ­ence such a determination.7 i .

(4) Again, it is pointed out by the adherents of this school that, if the temporary character o f the

physical conditions, on which the prohibition to m arry a wom an is based, were sufficient to m ake such a marriage any thing other than void, startling absurdities may arise. Suppose a man H marries W who is already married. Can the issue o f a union between H and W be held legitimate, though such a union is unlawful, in praesenti, by reason of a mere possibility o f a marriage between H and W, in futuro, on the occurrrence of a succession o f con­tingent events., To hold such an issue legitimate will be absolutely contrary to the basic principles o f Muslim Law which goes to the extent o f holding that a child of fornication will not be legitimised even by the subsequent marriage of its parents, if it is born before the expiry of 6 months from the date o f such a marriage, and this will be so, even when there was no legal bar to the marriage of its parents at the time of its conception.

Anqarvi Vol. II p. 151 says.“ If a man commits whoredom on a slave girl

and then purchases her, he is punished, in the opinion of all. The rule is the same when a man commits w horedom on a free woman and then marries her” Bhar-rur-Raiq Vol. V p. 21 says.

“ It is stated in Jamai Kazi K han : If a m an com­mits w horedom on a free woman and then marries her, punishm ent is not dropped according to all.” Fataw ai Alamgiri Vol. II p. 151 says.

“ W hen a m an commits whoredom on a slave girl and then purchases her, the authentic report

is th a t he is punishable according to all. Similar is the case if he commits whoredom on a free woman and then marries her. This is stated by Sheikul- Islam in the com m entary on the Book on Punish­m ent.”

Therefore, if a subsequent marriage between the parents o f the child cannot legitimise the issue o f an antecedent Zina, it will violate every rule of logic to hold that the mere possibility o f a marriage between the parents would do so. The contrary view will, in plain words, am ount to this: where there is no bar to marriage, but sexual co-habitation takes place which results in conception, the child will be illegitimate; but where there actually exists a legal bar to the marriage, the child will be legiti­mate, because the parents have thought fit to commit a fraud upon Law, and have violated the sanctity of its rules. Such an argum ent will, to borrow a geometrical expression, am ount to a reductio ad absurdum .

(5) Again, it is pointed out that Abu Hanifa did not draw any distinction between marriages with women who were perm anently prohibited and those who were tem porarily prohibited. He held that a marriage with a woman o f either category was merely fasid and not batil. This goes a long way to prove that, in his opinion, the perm anency or non-perm anency o f the physical conditions on which the prohibition is based does not determine the character o f a defective marriage. W hat makes a m arriage void is tha t the wom an is prohibited by law.

(6) The fact that the term “ Prohibited’ is predicated of the women who are permanently prohibited, such as mothers etc, and of married women ) and of a conjunction o f two sisters,in one and the same verse of the Quran, by one and the same mode of prohibition, is a conclusive p roo f o f the fact that, in respect of the certainty, nature, and extent of the prohibition, the Quran makes no difference, whatsoever, between a married woman and a woman prohibited on grounds of consanguinity, affinity and fosterage. As regards polytheists and father’s wives, the Quran is equally emphatic, since the term V (£>0 notmarry) is used in respect of both of them.

It is worthy of special notice that all those authorities who hold marriages, with temporarilyprohibited women, merely fasid, and notbatil, and seek to draw a distinction between this class of women and the other class of permanently prohibited women, most scrupulously avoid making a reference to the verses o f the Quran. They never care, or dare, to give any interpretation of the Quranic verses which willsupport their contention. As against this, the other school, which holds the view that a marriage with any w om an who is prohibited by Quran, is absolute­ly null and void (Batil), bases all its arguments upon the Quranic verses.

Baillie in the whole of his Ch. VIII Book I does n o t refer to the Quran at all. Amir Ali, in his Ch.

V II, in which he discusses Batil and Fasid marriages discusses a num ber o f ancient authorities on pp. 392-7, bu t strangely enough never once refers to the Q uran .

CHAPTER I

C o n j u n c t i o n o f t w o s is t e r s in m a r r i a g e .

Now 1 shall discuss the cases of those classes of women in respect o f w hom there is a conflict o f view on the question whether a nikah with them is merely invalid (fasid), or, it is totally null and void (batil).

Since the most discussed case is that of two sisters, I shall start with her case.

(1). Quran 4.4.1.“ To you are prohibited your m others...and that

you called together two sisters.” (Text 5).(2). Hadis (Text 56).“ Whoever believes in God, and in the day of

Judgem ent, should not put together (i.e. put a t the same time) his water (i.e. semen) in the womb of two sisters i.e. he should not have carnal connec­tions with two sisters simultaneously.” Hedaya Vol. II p. 12.)

(3) Tafsir Kabir Vol. I l l 182. (Text 96).“ Verily the verse is in the passive voice,

so that, there is no mention in it that the subject ( <J“* u ) o f this prohibition is G od Almighty. So long as it (the fact that the subject o f the verb

is G od) is not proved, this verse will not explain the other thing, and there is no way open execpt fjma (concurrence of opinion). Hcncc, this verse alone proves nothing, but it is essential to take into consideration Ijma, also, along with this verse.”

“Thirteenth kind of prohibited women.” (Text 98)

“ God has said — ^ ^ l> ^ Cj 01 3

(and this that you make a conjunction between sisters except what has passed).”

“ As regards this verse, there are many explana­tions.”

“First explanation. G o d ’s words u*0^ ^ ' are in the place of subject because really the verse should be read, as if, it runs:6 ^ ^ ' i>*. j ^ 3 prohibited toyou are your mothers, your daughters and a junction between sisters.”

“ Second explanation : A conjunction betweensisters takes place in three ways : (I) either theyare married together, or (2) they are held together in ownership, or (3) one is married and the other is held in ownership. Now, as regards a conjunction between sisters in marriage, this happens in two ways.”

“ First, they are married together. The law regarding them is like this. It can be either a case of conjunction, or o f specification (by law), or of selection (by the man), or of invalidity. Now, as regards conjunction, it is Batil (invalid) by the order Contained in this verse...And specification (by law)

is also Batil, because it will be improper to prefer either iti the absence o f any legal reason for preferring her over the oilier. Now as regards a selection by the husband, that wili also be batil, because the rule o f selection presumes a previous marriage, and its continuity up to the time o f selection, and we have already explained its invalidity. So that, nothing remains, except the law that, in case * o f two marriages, both are invalid.”

“ The second form of conjunction is when one is married first, and the marriage with the other is held afteiwards. In such a case, the law prescribes for the invalidity of the second nikah, because, preven­tion is better than cancellation.”

“ And if we look for the opinion of jurists, it will be found tha t it is lawful to hold two sisters in owner­ship a t the same time, but, if a sexual intercourse is held with one o f them, a sexual intercourse with the o ther one will not become lawful, unless and until the right o f enjoyment over the first is removed’ either by selling her, or, by making a gift o f her to another person, or, by making a contract with her or by giving her away in marriage.”

“ Shafei says if a K afir adopts Islam, and he is married to two sisters, he must make a choice between them, keep one of them and seperate from the other Abu Hanifa says that if he was married to them by one contract, he must be seperated from both of them ; if he married one of them first, and the other one later, he should keep the first and part with the second. Abu Bakr Razi agrued with Abu

Hanifa on this point, and discussed with him the verse u*--- 61 . He said that theorder in this verse is general, so that it includes (in its operation) both Muslims and Kafirs, and once it is proved that the rule operates upon Kafirs also, their Nikah necessarily becomes “ Fasid,” because prohibition proves “ Fasad” i.e. invalidity of such a marriage.”

(Note : fn the last line, Razi has used the words and though the context clearly

shows that total invalidity is meant. It is an illustration of the fact that these early writers made no distinction between Fasid and Batil.)

In discussing the case of the marriage ol' one sister during the iddat of the other sister, Imam Razi gives the arguments of Imam Shafei in the following words. (See Text 98). “ Here, Shafei takes up the arguments of Imam Abu Hanifa, that the nikah still continues in some respects, because, there remains the obligation upon the woman to observe iddat, and the obligation upon the man to pay dower, and says that the nikah of a sister, during the period of her other sister’s iddat, on an irreversible Talak is lawful. Abu Hanifa says it is not lawful. The argument of Shafei is tha t it does not result in conjunction (of two sisters in marriage), so th a t it becomes essential that there should exist no prohi­bition. We say (Shafei says, our argum ent for this statement that there is no conjunction) that there will be no such conjunction of sisters in marriage, because, the N ikah of the divorced w om an is non­

existent; and the proof of this fact (non-existence of her nikah) is that it is no longer lawful for the hus­band to have sexual intercourse with her; and if he does have a sexual intercourse with her, he will be liable to Hudd. And as we say (Shafei continues) that if a conjunction of two sisters, in marriage, is not found, it becomes necessary that there should be no prohibition either. God commands after specifying the women who are prohibited,(All women are lawful to you who are outside this category); and there is no doubt, whatsoever, in the non-existence of all the causes of prohibitions in their case, except, the rule that there should not be a conjunction between sisters. Now, when it is proved by valid reasons that there is no such* con­junction in this case, it becomes necessary to hold the marriage (of one sister during the iddat of her sister, on an irrevocable divorce) lawful.” (Some further discussion on this conflict of view between Abu Hanifa and Shafei will be found later, in the chapter on the marriage of a fifth wife during the life time of the fourth wife.

In discussing the case of the marriage of one sister during the iddat of the other sister, Imam Razi gives the arguments of Imam Shafei in the following words p. 188-189.

“If, it be said that the Nikah remains in existence in some respects, since, there remains the necessity for Iddat, and the liability for her maintenance, we say that Nikah is a single and indivisible fact, and such an indivisible fact can, in no case, have simul-

taneously an existence and a non-existence. Blit if this (indivisible) fact could be divided into two such seperate paits, that one of them could exist and the other one might not exist, it would have been correct (i.e. the nikah remains in existence), but as the indivisible fact is incapable of a division (bisection), this opinion (that the nikah remains in existence) is incorrect. As regards the obligation to observe iddat, and the liability to pay mainte­nance, know that if the Nikah exists, there will exist the power to control the woman; but it does not mean that the man does not get the power to con­trol the woman, on account o f Nikah, because the “ tali” # o ^ JI , > does not result inproving the existence of (which here is(C£JI ^ To give the right to keep the womanin control, ilftci the dissolution of Nikah, by some means other than Nikah, is reasonable, but to assert the existence of N ikah, when it is said that it does not exist, is a thing which is not acceptable to reason, and it is better to deduce the rules of law which are in accordance with (i.e. acceptable to) reason, than to deduce such rules, the incorrectness o f which is patent to reason.”

The following points emerge from the above extracts.

According to Im am Razi.

(1) In verses 4.4.1 and 4. 4.2 G od has prohibited 14 classes o f women and one in the preceding verse.

(2) The verse r^-r^ is one in which the name of the ( J - ^ ) i.e. the subject is not given. The

or the originator of this Tahrim is God.

(3) So far as the illegality o f a marriage with them is concerned, Imam Razi puts all these 14 cases exactly on the same level.

(4) He considers the phraseas a predicate o f the verb as if, the whole versewere to read like this ^ b 3 £+-*_}*■

J , so that, just as the words (your mothers) and <+—' ■ (your sisters) are the predicates of the verb similarly, the noun

' is also the predicate. The remaining two wordsa - mer el y indicate the persons who are prohibited to be joined together.

(5) This conjunction of two sisters may take place in three ways :

(A) W hen one marries two sisters. This again is o f two kinds : (a) Where the marriage with thetwo sisters is simultaneously contracted. In such a case, on the authority of this verse, he holds both marriages “ Batil.” (b) Where marriage with one sister takes place first, and later on, the second sister is contracted into marriage. In such a case, he holds tha t the first marriage is Sahih, but- the second marriage is batil. In this latter case, he mentions the case of the marriage of a ‘K afir’ with two sisters, who were married

by him when he was a ‘Kafir’ ; so that, his simultaneous marriage with both of them, was valid, according to the personal law which was then applicable to him. If he embraces Islam, according to shafei, he will be given a choice to keep one and part with the other sister. But, according to Abu Hanifa, if he had contracted the two marriages simultaneously, he must part with both the sisters; if, on the other hand, he had married them separa­tely, he may keep the one he had married first, but must part with the other whom he had married later. When Abu Bakar Razi argued with Abu Hanifa on the soundness of this opinion of his, Abu Hanifa declared that this Quranic Injunction has a universal application and applies to Muslims, as well as to Non-Muslims; and, since, it applies to non-muslims also, it will necessarily follow that the second marriage of the Kafir, on his embracing Tslam, will become nugatory ^ J jo <jVbecause a Nahi (prohibition) establishes illegality. Incidentally this will also show that, even, accord­ing to Abu Hanifa, a marriage with two sisters is strictly prohibited, and if they are contracted simul­taneously, both will become tainted with the illega­lity, and, if they are contracted separately, only the latter of the two will be so tainted.

(B) When one becomes the owner of two female sisters.

(C) When one is the owner of one sister, and marries the other sister, or, when one becomes the owner of his wife’s sister,

Since slavery is now non-existent, the topic has become merely academic; and I will discuss it, only, so far as, it has some bearing upon the case of two sisters, by way of analogy or elucidation of the principle underlying the rules. In respect of two slave girls who are sisters, he mentions that it is permissible for a person to own two sisters, but if he co-habits with one of them, the other one becomes H aram (unlawful), and this Hurmat (unlawfulness) o f the other sister can not be removed, unless and until, the m an’s ownership of the sister with whom he has had sexual intercourse, is put an end to by one or the other of the modes recognised by law i.e. by sale, gift, manumission, contract or her marriage with some other person. In other words, something must be done to make that woman absolutely Haram to the man. The idea underlying the rule, is that there should be left no room even for a temptation for the resumption of a co-habitation with that one. I have stressed this point to show how far the Shariat abhors a sexual co-habitation with two sisters.Hedayah. Vol. II. p. 12-13 (Text 57).

“ If a person marries the sister of his bondswo­man with whom he has not had sexual co-habita­tion, the marriage will be valid, because the act (of nikah) has been done by one who is J * 1 (com­petent to do it), and has been done with one who is a (i.e. a fitting subject o f marriage).W hen the marriage is thus valid, he should not subsequently co-habit with the bondswoman, even

though he does not co-habit with his wedded wife, because a m ankuha is, in law, in the place of a m autuah. (faemine Fututa) i.e. one with whom there has been co-habitation; and he should not co-habit \yith the m ankuha also, on account o f an unlawful conjunction, until he makes unlawful to himself his bondswoman by one of the causes recog­nised by law. Then he can co-habit with his wedded wife, because there will, no longer, be any unlawful conjunction. He can co-habit with his wedded wife, if he had not previously co-habited with the bonds­woman, because, in that case, there would be no unlawful conjunction by co-habitation, because a bondsw om an is not considered by law as a M au tuah” .

“ If two sisters are married together, by two sepa­rate contracts, and it is not known which of the two is the first one, there should be a separation between the man and the two sisters, because the marriage with one of the sisters is undoubtedly batil. Be­cause it is not known which one was contracted first, priority between them can not be determined; nor can either marriage be enforced, on account of ignorance (of the factum of the marriage). It will not be useful, rather it may be harmful, to make such an attempt. Therefore, separation between them is necessary. They will get, between themsel­ves half the dower, because it is payable to the one who, from amongst them, was first married. Since the priority in marriage is not known, this ,half dower will be paid to them, to be divided

equally between them. Some say that it is neces­sary for both of them to claim to have been married first, or, they should mutually agree, because it is not known who is, in fact, entitled.”

Kifaya (commentary on Hedaya ) p. 12 (Text 57A).

“ The phrase L * * * <31 is in place ofpredicate ( j ), and is governed by the word °L J/ ' ,jaS if the verse read likeO^ ^ 1 {j*-(to you is prohibited a conjunction between two sisters).”

The following points emerge from Hedaya and Kifaya.

(1) If two sisters are married simultaneously,and it is not known which of the two wasmarried first, both the marriages will become ungatory, because one of them is certainly Batil, and it is not possible to ascertain which one was the first. The clear implication of this enunciation o f law is that, according to the author o f Hedayah, the marriage which is conctracted later, in point of time, is Batil, without any doubt. In other words, if they had been contracted separately, the one contracted later, in point of time, would have been null and void altogether.

(2) Where the two marriages are contractedsimultaneously, and it is not known which of themwas contracted first, in point of time, the man is to be separated from both the sisters, and they will get, between them, half the dower, because the

one who was, in fact, married first, is certainly entitled to the dower and, because theorder in which the marriages were contracted is, ex hypothesi, not known, and it can not be said who was married first, the dower which would have been payable to the one who was married first is to be divided between the two sisters, and, since it is not known who was married first, she cannot be defini­tely ascertained and paid her dower. Therefore, on equitable grounds, both the sisters will share, between themselves, half the dower. By implication, two things emerge :

(a) If it were known who was married first, and who was married afterwards, the one who was married first, would have been entitled to the whole of her dower, and the latter would have got nothing.

(b) The fact, that both sisters share half the dower, in the above case, can be no ground for doubting the Butlan (invalid ity) o f one of the marriages, and can not be made any argument for asserting, that since both the sisters share half the dower, the marriages with both, in such a case, stand on the same footing, and their marriages are equally defective (fasid). The reason assigned, in Hedayah, makes it perfectly clear that they both get the benefit of doubt. Since the man has to discharge his liabi­lity to pay half of one dower (for the woman who, in fact, though unknown, was married first), he is made to pay it; and as neither sister can claim the whole, because she cannot prove that she was

married first, the money thus paid by the husband will be distributed in the most equitable manner i.e. in equal moities. F o r the same reason, the extent o f the husband’s liability will also be determined by law, on equitable grounds.

(3) Kifayah, like Tafsir Kabir, says that thephrase ol is the predicate, and isgoverned by the verb and that the text shouldbe read, as if it were ( ^i.e. it is prohibited to you to join together two sisters. The plain implication is that the joining to ­gether of two sisters in marriage (i.e. marrying two sisters, whether at one and the same time, or one after another, i.e. by marrying one’s wife’s sister, in the life-time of one’s wife) stands, exactly, on the same footing as a marriage with one’s mother or daughter, and the prohibition in regard to both is exactly alike.

(4) The reference to the female slave illustrates and emphasises the rule. The author of Hedayah says if one marries the sister of his slave girl, with whom he has had sexual intercourse, the marriage will be valid, because the woman is M ahal (fitting subject o f marriage), and since the marriage is valid, he cannot subsequently co-habit with the slave girl, even if he does not have any sexual intercourse with his wedded wife, because, in the eyes of law, a married w om an is in the position of a wom an with w hom sexual intercourse has been held. He cannot (if h e j i a s had sexual intercourse with his slave girl,

previous to his marriage with her sister) co-habit with his wedded wife also, until he makes the slave girl unlawful ( •* L-*- ) lo himself by one of the prescribed methods. Only after he has made her unlawful to himself, can he be permitted to co-habit with his wife But if he has not had any sexual co-habitation with the slave girl, he can co-habit with his wife, because, in the case of a slave girl, the law does not prescribe that a co-habitation with her is to be presumed from her mere possession. This shows clearly how shariat disfavours sexual inter­course with two sisters, at one and the same time.

(5). Fatawai Qazi K han Vol. 1 p. 167-9. (Text 35)

“The prohibition on marriage is of two kinds, perm anent and non-permanent. Permanent pro­hibition results from consanguinity, fosterage and affinity...and the M oharram at (prohibited women) who are not on the way of permanency (i.e. who are not permanently prohibited) are seven in number... Among them (i.e. among the prohibited women of this second class) is the conjunction of two sisters in marriage, whether they (both or either of these sisters) are free or slave women. Tf they are marri­ed together, both marriages are “ Batil.” If, on the other hand, they are married successively, the first marriage is Sahih, and the second one is Batil.”

Then Qazi K han proceeds on to say that if one co-habits with one’s wife’s sister by mistake, such a sister m ust observe iddat and the m an should

not co-habit with his wife until the expiry of her sister’s iddat.

Then Qazi Khan mentions the case of purchas­ing two sisters as slaves, and gives the same opinion as is m entioned in Tafsir Kabir.

Then Qazi K han says, on p. 169. (Text 35).

Translation. “ If a person marries two sisters together, and, consequently, their marriages become defective, and then separates from them (the context shows tha t the separation takes place before co­habitation), he can immediately marry, again, either o f them. If a man marries two sisters, and, conse­quently, their marriages become defective, and he co-habits with both of them, both of them will have to observe iddat, and it will not be lawful for him to marry either o f them (immediately). But when the iddat o f one is com ­plete, it will be lawful for him to marry the other sister (whose iddat is not complete). I f one marries a wom an, and, afterwards contracts a Nikah with her sister, the first marriage will be sahih (valid), and the second one will be Batil (null and void); but if he has co-habited with the second woman, (i.e. the w om an with whom the N ikah is Batil), he can no t have sexual intercourse with the first woman (with w hom the N ikah is sahih) until the id d a f fo f the second wom an expires.”

Then he discusses the case o f two sisters who are jo ined together, one in N ikah, and the other in Iddat.

“ I f a person marries a woman whose sister is in iddat, either on account o f an irrevocable Talak (given by this very person), in the case o f a valid m arriage, or, on account o f a separation after an invalid (fasid) marriage, such a marriage is not valid according to us.”

The following points emerge from the above extracts :—

(1) Qazi K han places all the M oharram at on the same footing, and does not suggest that there is any difference between them, so far as the nature o f the H u rm a t is concerned. He is also following the letter of the Quran.

(2) He is very clear on the point and says emphatically that if two sisters are married simul­taneously, the marriages with both the sisters are batil; if, on the other hand, they are married succes­sively, the marriage which is contracted first is valid, and the other one which has been contracted later, is Batil.

(3) If the two sisters are married sim ultaneous­ly, so that their marriages become defective, and the man separates from them before he has co-habited with either, he can immediately marry either o f them, by a fresh contract o f marriage. If, however, he does so after he has co-habited with both of them, iddat becomes obligatory upon both the sisters, and he can not marry either o f them, until their iddats expire. I f the iddat o f one has expired, but not o f the other, he can marry the one whose iddat has not expired,

(4) I f he marries the two sisters successively, so that the first Nikah is valid and the second one is batil, and he co-habits with the second sister (whose N ikah is batil), he cannot co-habit with the other sister who was married first, and whose Nikah is valid, until the iddat of the second sister is complete. Here, by clear implication, he says that the nikah which was contracted earlier, remains valid, even though he has had sexual intercourse with the other sister whose marriage will be batil in spite of his actual co-habitation (i.e. consummation of marriage) with her. His later marriage with the second sister will be entirely devoid of all legal consequences, and his co-habitation with her will not, ex post facto, validate her marriage, or, affect the validity of the marriage of her sister who was married earlier.

(5) If one sister is undergoing Iddat, whether on divorce, in the case of a valid marriage, or on a sepa- ration, in the case of a fasid marriage, her sister cannot be married, during her iddat, by her previ­ous husband.

(6) Dur-rul-Mukhtar p. 300 (Text 36).

“ The causes of prohibition are m any: consangui­nity, affinity, fosterage, collection (or conjunc­tion), ownership, polytheism, marrying a slave girl upon a free woman, three divorces, married woman, a woman who is in her iddat from a divorce by another.”

p. 308 (Text 58).

“ Conjunction of M oharim is prohibited in a valid m arriage and in Iddat, even if it be on an irrevocable Talak. It is also prohibited to co-habit with two slave girls who stand to each other, in such a degree o f relationship, that, if one of them be supposed to be a male, she may not be lawful for the other one, at any time.”

D ur-rul-M ukhtar from R udd-ul-M uhtar (310) (Text 59).

“A nd if a man marries them at once, (that is marries two sisters or those who are so, in meaning) or, by two contracts (of marriage), but he forgets which marriage was contracted first, then the Qazi shall cause separation between him and th e m ; and this separation shall be considered a divorce (and not faskh or cancellation); and both shall be entitled (together) to half of the dower. This will be so, in cases where the husband forgets ; because, if the man marries both o f them together (that is, a t once), then the result o f it is that the marriage with both is void or batil; and the dower shall not be obligatory, unless there has been intercourse, as is laid down generally in the books.”

Here, the following points may be noted.

( 1) All the causes of prohibition are put on the same level, and no distinction is made between '■a-J-l-jS or ‘-r--4*0 (consanguinity) and £r^ J' (conjunc­tion), of which, a marriage with two sisters is one o f the kinds,

(2) Tt is prohibited to marry two sisters, either simultaneously, or one after the other, or one during the Tddat of the other (even though the Iddat is on account of an irrevocable Talak).

Dur-rul-M ukhtar, as in Ruddul M uhtar Vol. IT p. 984. says :— “ According to Dictionary, Iddat means to count. According to shara, it means such waiting as becomes obligatory on a woman or on a man, when the cause of waiting is found. The occasions for a man to wait are “Tw enty /’ and they are mentioned in the Khazana. The sum and subs­tance of what is stated in the Khazana points to this that, whenever it is unlawful that a woman should marry a man, on account of some prohibition, it becomes necessary that the prohibition should be removed in order that the marriage, when it takes place, should be valid e.g. marriage with the wife’s sister, or of four women in addition to the wife.”

Rudd-ul-M uhtar on p. 985 explains the word “ Twenty” as follows : I have put them in groups,for the sake of clarification.•

G roup A. l-4-(l) Father’s sister, (2) mother’s sister, (3) brother's daughter, (4) sister’s daughter.

G roup B. 5-11. (5) Wife’s sister, (6) fifth wife,(7) a woman in iddat (with reference to a stranger),(8) one’s own thrice divorced wife before the Mohal- lil’s aid has been obtained. (9) Marriage with an infidel, until he becomes a Muslim (10) Marriage with a Majoosee, until he becomes a Muslim (11) M arriage with an infidel Woman.

( n o )

G roup C. 12-13. (12) A fourth wife when one, having already three wives, co-habits with a fourth woman (13) The sister of a woman with whom he has had intercourse in a fasid marriage or in doubt, and who is in her iddat.

Group D. 14-20. (14) A slave girl upon a free woman (15) To have sexual intercourse with a slave girl whom a man purchases, before her period of purity (istibrai). (16) Having sexual intercourse with a woman who is pregnant from Zina, if a man marries her i.e. before her delivery. (17) To have sexual intercourse with a woman who embraces Islam, in Dar-ul-Hurb, and migrates to Dar-ul-lslam, while she is pregnant i.e. to have sexual intercourse with her before delivery. (18) Sexual intercourse with a M ookatuba by her mowla, until she becomes incapable of earning her freedom. (19) M arriage of a M ookatuba with her Mowla, until she gets her freedom. (20) Sexual intercourse with a woman taken prisoner in a Jehad, until she gets her menses, or, until the expiry of one month, in case she gets no menses, either from being too young or too old.

F rom this list it will be seen that, in Rudd-ul- Muhtar, the marriages with the women in G roups A (who are permanently prohibited) and B (who are not permanently prohibited and whose marri­ages are called Fasid by Baillie and Amir Ali) are put exactly on the same level. D ur-rul-M ukhtar mentions categorically that the prohibition must be removed first, and then a marriage can validly be contracted with any one of these women.

other words, nikah itself cannot be contracted with any one of these women, unless and until the condi­tion precedent—removal of the bar of prohibition— is first fulfilled. The marriage can not precede the fulfilment of the condition, nor can it be contract­ed in the expectancy of such a fulfilment.

(7) Radd-ul-Muhtar p. 308. (Text 60).

“ Tf they are married (i.e. the two sisters are married) by one contract, it (i.e. the contract of marriage) is certainly not valid. If they are married one after the other, and the first marriage is valid (i.e. if it is not ineffective for some other reason) the second one will be absolutely Batil.”

Therefore Rudd-ul-Muhtar lays down 3 things :

(1) If the two sisters are married by one con­tract, such a contract is invalid, so that their marriages are invalid.

(2) If they are married successively, the second marriage will be absolutely batil, if there is no impediment to the first marriage.

(3) By necessary implication, it lays down that if the first marriage is for some other reason invalid (say on account of a bar of fosterage existing bet­ween the man and the sister married first), then the second marriage will be valid. In other woids, if one of the marriages is invalid aliunde, the other one will be valid. Tf both would, otherwise, be valid, the second one would be absolutely batil, on the ground of unlawful conjunction,

L ater on, at p .380 of Vol.II, the author of Rudd- u l-M u h ta r expresses an opinion which has been very much discussed. But to explain it properly, it is necessary to give its back-ground. Rudd-ul- M uh ta r is a commentary on D ur-rul-M ukhtar which, in its turn, is a commentary on Tanweer-ul-Absar. As is the practice of the writers o f commentaries, each comm entator ex­plains the words and phrases o f the text, o f which he is writing the commentary. Therefore, it is necessary for properly understanding the passage, to refer to the original text o f Tanweer-ul-Absar, then to that o f its com m entary D ur-rul-M ukhtar and then to come to Rudd-ul-M uhtar.

(1) Tanweer-ul-Absar. In discussing the liabilityto pay dower it says : (Text 61).

“ Customary dower becomes due in a Fasid marriage by co-habitation, not without it.”

(2) D ur-rul-M ukhtar explains the term ‘Nikah- i-fasid’ in the following words. (Text 62) :—

“And it (i.e. Nikah-i-fasid) is that in which there is wanting some one of the conditions which are neces­sary for the validity of the marriage, for instance, witnesses.”

(3) Now, Radd-ul-M uhtar, in its turn explains the words used in Dur-rul-M ukhtar. See Vol. II, p. 574. I t begins with the explanation o f the word

(Text 63).“The expression, “ e.g., witnesses, and similar

to it,” is the marrying together o f two sisters, and

m arrying a sister during the iddat of another sister, and marrying a w om an who is observing her iddat, and (marrying) a fifth wife during the iddat of the fourth, and (marrying) a female slave upon a free woman. And the M uhit (giving an instance of an invalid marriage) says: “ A Zimmi marries a mus- lim w om an; seperation shall be effected between them, because the marriage is an invalid (or fasid) m arriage.”

“The apparent inference from the language used in the M uhit is, that they shall not be subjected to punishment (or hudd), and that nasab is also estab­lished from that marriage, and that iddat will also be established if he has had intercourse.”

“ I (that is, the author of the Rudd-ul-Muhtar) say tha t the com m entator (that is, the author of the D ur-ru l-M ukhtar, who has written the commentary on the Tanweer-ul-Absar) shall presently state towa­rds the end o f the section dealing with the establish­m ent o f nasab, whilst quoting from the Majma-ul- Fatawa, that, “ if a kafir marries a muslim woman, and the woman gives birth to a child by him, the nasab shall not be established from him, and iddat shall not be obligatory on her, because the marriage is void (or batil),” and this is clear, and, therefore, the same is to be preferred to an inference (from the above quota tion from the Muhit). This thou shouldst understand. A nd the object (of the author o f D ur-ru l-M ukhtar, in citing the passage from the M ajm a-ul-Fataw a) is to show the difference between fasid and batil, in the case of marriage. But in the

Fath , just previous to his disquisition on the m uta m arriage, it is laid down tha t there is no difference between them in the case o f sale. Yes, in Bazzazia, two views are reported on the question whether the nikah o f the maharim is fasid or batil.”

“A nd it is clear that the meaning o f batil is a m arriage the existence o f which is like its non-exis­tence, and for this reason, nasab is not established, nor iddat either. In the chapter on the marriage o f the m aharim , (as will be known from what is to come in the chapter on hudd, or punishments), and in this place (that is, in the place where nikah fasid is dealt with), the Kohistani has explained fasid as batil, and he has brought forward, as an instance of it, the marriage o f the m aharim , a compulsory marriage on behalf of the woman and a marriage without witnesses: and as regards the compulsion being exercised on behalf o f the woman, I have already written a disquisition on it in the early portion o f the (Book on) marriage, a little before the expression o f the au thor (i.e. o f D ur-ru l-M ukhtar on Tanweer-ul- A bsar)” “ and it is a condition that two witnesses should be present.”

“ A nd it will presently come in the chapter on Iddat, that there is no iddat in a marriage which is batil. A nd it is stated, in this place, in the Buhr (that is Bahr-ur-Rayeq), on the au thority o f the M ujtaba, tha t in every nikah, as regards the validity o f which the learned have differed, as for instance, a m arriage w ithout

witnesses, sexual intercourse, in that marriage, establishes the (obligation of) iddat. But in the case of the marriage o f a woman who is already the wife o f another, or who is in the iddat of a different man, sexual intercourse, in that marriage, does not establish iddat, if the husband knows that the woman is the wife of another, or is in the iddat of a different man, because nobody has laid down the validity o f such a marriage, and, therefore, the marriage shall not be held to have been contracted at all. And he (the au thor of the Bahr) says:—“ It is for this reason, that a distinction must be made between a fasid and a batil marriage, in the matter of (the obser­vance of) the iddat; and it is, also, for this reason, that punishment (or hudd) is established, if the husband is aware of the unlawfulness, because sexual intercourse in such a marriage is Zina, as is laid down in the Zineea and other books.”

“ And the result is that there is no difference between a fasid and a batil marriage in any matter other than that o f iddat; but, as regards the iddat, the difference is clear, and, therefore, the expression used by the Bahr “ and the marriage with a woman who is observing her iddat from another m an” should be coupled with the condition—“ when the husband does not know that she is a m oatudda.”

“ But the phrase in the Mujtaba “ as for instance, by the marriage of two sisters, at once,” makes the rule laid down by the Bahr open to an objection; because it is quite clear that nobody is convinced

of the validity o f such a marriage. But you must consider the reason for (he c o n d i t i o n “ at o n c e " (in the M ujtaba). ' Ami il is d e a r that the bringing together is in the contract, and not in the owner­ship or enjoyment, because if (in the case of a m arriage with two sisters) one contract follows tlie o ther contract, then the subsequent contract is absolutely batil.”

Rudd-ul-Muhtar Vol. I ll p. 231. Chapter on punishment.

“ It is held by all authorities that there will be no H udd in cases o f Doubt in the act, and D oubt in the persons. It will be so, in the first case, if the man . pleads that he was not aware of the illegality, and in the second case, even if he was aware o f the illegality.”

Subha-i-akd occurs where there is a contract in semblance but not in reality; because doub t is what resembles a real contract, but is not, in reality, a contract. Therefore, a contract is excluded from shubha-i-akd, and, for this reason, it is laid down in Tatarkhani that “ when sexual intercourse takes place by virtue of the milk or ownership o f nikah ( or m a r r ia g e ) or by reason o f the ownership of person, and the unlawfulness arises in consequence o f something else, then this sexual intercourse does not involve liability to Hudd e.g. in cases where a person has had sexual in ter­course with a wife ( 1) who is in her menses, or(2) who is in her impurity after her child-birth, or (3) who is in her fast o f the farz kind, (4) or

who is in h e r lh ra m , or (5) who is observing iddat, or because someone else (6) has had intercourse with her from doubt, or (7) the husband has made Zihar or Eela with her. Similarly, there will be no hudd, even if he knows o f the unlawfulness, if he co-habits( 1) with his slave girl who is unlawful to him on account o f fosterage or affinity, or (2) with his slave girl whose sister is married to him, or (3) with a slave girl who is a majoosi or an apostate.” (Note. In the last three cases, there will be no hudd because, in any case, he has a right of possession over her).

After discussing the case at great length, Rudd- ul-M uhtar comes to the conclusion that a marriage with them will not expose a man to hudd ( 1) according to Abu Hanifa, whether he knows of the illegality or not, but (2) according to the two disciples, only if he did not know of the unlaw­fulness o f the marriage. He also says that it is stated by all, that Fatwa is in accordance with the opinion of the disciples.

Tahtawi ( a commentary on Rudd-ul-Muhtar) Vol.n. p.59. A.D.1839.

“ The expression “e.g. witnesses” includes the case o f a marriage with ( 1) two sisters together, or (2) o f a sister during the iddat of another sister, or (3) of a woman who is a moattada (one observ­ing iddat), or (4) of a fifth wife during the iddat of the fourth wife, or (5) of a slave girl upon a free woman, or (6) of a Kafir (infidel) with a Muslima. So no hudd will be inflicted on them, and the

nasab will be established, and the woman will have to observe iddat.”

It will be seen that TalUavi has merely taken the list from his text, Rudd-ul-M uhtar, Vol. II p .574, (Chapter on Dower), which, in its turn, lakes it from Mohit. As regards the effects of a marriage with any one of these six classes of women, Tahlavi again copies out the sentence of Rudd-ul-M uhtar, but drops out the crucial part of R udd’s sen­tence, “The apparent inference from the language used in the Mohit is, that they, i.e. the parties, will not be subjected to hudd, that nasab is also establi­shed from marriage and that iddat will also be established if he has had intercourse.”

Then Rudd-ul-Muhtar, quoting Dur-rul-M ukhtar and Majma-ul-Fatawa, clearly says that a marriage between a Kafir and a Muslima is void (batil), so that, neither iddat is obligatory upon the woman, nor will the child of such a marriage be legitimate. Later on, Rudd, quoting Bahr says that, in the case of a marriage with a married woman or with a woman in her iddat, sexual intercourse with the woman will not establish iddat, if the husband knew that she was a married woman or was observ­ing her iddat, because nobody lays down the validity of such a marriage which shall, consequently, not be held to have been contracted at all. He further says that in such a case (i.e, where the husband knew that the woman was unlawful to him) the sexual intercourse with her will amount to Zina and expose the parties to Hudd.

Therefore, Rudd disagrees with Mohit in three cases : i.e. in cases of a marriage between a Kafirand a Muslima, a marriage with a married woman and a marriage with a woman in her iddat. Since the cases o f the remaining three classes of women m entioned by M ohit (marrying together two sisters, marrying a fifth wife during the iddat of the fourth and m arring a slave woman upon a free woman) are absolutely at par with those of the three classes just mentioned above, it will not be an unwarranted assumption to hold that Rudd can not be said to have approved of, or adopted M ohit's opinion in respect o f the remaining three cases.

In any case, it can confidently be asserted that Rudd has merely quoted a passage from Mohit, expressed his dissent with part of the statement and did not express his own opinion regarding the correctness, or otherwise, o f the remaining portion o f M oh it’s statement.

Tahtavi, apparently, mistook the sentence as expressing R u d d ’s own opinion. He has omitted an im portan t portion and has disregarded the long discussion in which Rudd enters immediately after­wards. T hus the passage he quotes, assumes a w rong meaning.

Therefore, this sentence may be taken to express the opinion of M ohit, and possibly, of Tahtavi, but certainly not tha t o f Rudd.

N ow , the comm ents o f R add-ul-M uhtar may be sum marised as follows ;

( 120 y

“ Tt is more proper to drop the word Sahih, as has been done in Bahr and Nahur, because, as H am awi points out, if one marries two moharim by one contract, that marriage is not, at all, valid, and if they are married one after the other, the first will be valid and the second will be absolutely void or batil.”

(2) (J J ^ I 7" SC-J I J

“ If he remembers which was contracted first, tha t one will be Sahih (valid), and the other one will be void (batil). He can, then, co-habit with the first, unless he has co-habited with the second, in which case, he cannot co-habit with the first until the iddat o f the second expires, just as is the case when he co-habits with his wife’s sister by Shuhb (taking the sister for the wife) without there having been a marriage withher sister, (in which case) it would not have beenlawful for him to co-habit with his wife, until the iddat o f her sister had expired. The first will get her whole dower and the second will get nothing (if there has been no consum mation with her)because her N ikah is batil or void.”

(3) I U-)L_g.a. j y I ■i I

“This statement makes a distinction between two cases :— (a) Where the two sisters are married to ­gether by one contract, (b) W here they are married seperately, but the husband forgets which one was contracted first,”

“ In the latter case, the marriage of the one who was actually married first, is valid or Sahih, and she is entitled to half of her dower, on divorce (before consum mation); whereas, the marriage o f the second one is not so, and she is entitled to no dower whatsoever. But, since it is not known which one was the first, the half dower o f the Sahih marriage will be divided between the two, on grounds of equity.”

“ In the first case, the marriage of each one of them is positively void, and in case of a separation before consummation, there will be neither dower nor iddat for either of them. I f there has been intercourse with both, each will become entitled to whichever is the lesser am ount—the fixed or the proper dower— and they will have to observe iddat, in the same way as in an invalid or fasid marriage, F o r authority, he quotes Bahr.”

“ Bahr also says that M ohit has made it a con­dition for the marriage o f both o f them being void, that neither o f them should be in the marriage, or iddat, o f another man; because, if it is so, then the marriage o f the other will be valid, because there will be no joining together of both of them ; just as a w om an marries two men by one contract, and one of them has already four wives, the woman shall then become the wife of the other man, because the joining of two men is not established when the w om an cannot be lawful to one of the two men.”

In this passage, Rudd-ul-M uhtar is merely dis­cussing the liability to pay dower; he is not consider­

ing the validity or invalidity of the marriage. O bligation to pay dower may also arise in cases where, according to all, there is no valid marriage, e.g. in a marriage with one’s own sister, if it is contracted in ignorance o f the relationship.

There has been a great deal o f confusion in understanding the real nature of M ahar even am ong the early text writers. Nobody, except one, has given a comprehensive definition of M ahar which will apply to every case. The only definition which brings out the real nature of M ahar is given by Qazi K han on page 177 o f his Fatawa.“ As for M ahar, it is a return for (or price of) vagina. As he possesses her vagina, he is required to pay for it.” (See Text 111)

D urr-u l-M ukhtar, (see p .380 of Radd-ul-M uhtar.)

“ Custom ary dower becomes obligatory in a Nikah-i-fasid by co-habitation (in the vagina) and not without it (e.g. by retirement), on account o f the prohibition of a co-habitation with her.” (See Text 112)

N ow R addul-M uhtar explains three terms in the above :—

“ If a m an copulates with a w om an in heranus i.e. commits the act o f sodom y withher, the m ahar does not become obligatory upon the man, as the anus is not the place ofgeneration, as is mentioned in K hulasa andKunniah. N or will it, all the more, become obli­gatory by touching or kissing her with desire, as it

has been clearly mentioned by theologians. The sam e is m entioned by Bahr also.”

“ The com m entator wants to explain that the M ahar does not become obligatory on the taking place o f the Nikah-i-fasid by itself, {i.e. by a mere retirement, enjoyment or the act o f co-habi­tation, is no t proved.) Therefore, such a retire­m ent is not sahih (valid), in the same way as a retirem ent with a wom an who is in her menses. F o r this reason, this retirement is not equivalent to an actual co-habitation. This is the meaning o f the w hat doctors say—valid retirement in an invalid N ikah is equivalent to an invalid retirement in a valid N ikah .”

(8) Ibne Arabi says, on p. 158.

“ G od has prohibited conjunction between two sisters, in the same way, as he has prohibited a m arriage with a sister {i.e. with one’s own sister)” (See Text 113)

Thus, Ibn Arabi has in a short sentence tersely pu t the m atter in a nutshell. In his view, there is no difference between a marriage with one’s own sister and a marriage with two women who are sisters. Then Ibn Arabi gives the arguments of A bu H anifa and, subsequently, he gives his own counter-argum ents against his views (Text 64).

“ A bu H anifa has argued from it and says that the cases of a marriage with the sister of his wife who is observing her iddat on being divorced by him, and of the marriage of the fifth wom an

w ho has been m arried during the iddat o f the fo u r th wife, are unlawful on account o f a gene­ralisation (of the com m ands) o f the Q uran , because, though they are not jo ined together in marriage, yet they are, all the same, jo ined together in control, based upon the rules governing the use o f vagina. This happens like this. W hen he marries her (his divorced wife’s) sister, then he keeps his wife (i.e. the sister) under control, on account o f the sanction or rules o f N ikah which makes her lawful to him and legalises his co-habita­tion with her; whereas, he keeps her sister under control, on account o f the rules o f N ikah which are aimed a t the purification of her womb, for the sake o f the purity o f the Nasab. Therefore, these conjunctions have been m ade unlawful on account o f the generalisations of Q uran .”

“This is one o f those greatly controversial points which I have discussed, in detail, at ano ther place.It will suffice to mention here that G od has p roh ib it­ed a man from joining together two sisters. This, certainly, is not a case o f joining together two sisters, because N ikah is the deliberate act o f man, whereas, Iddat has been imposed upon the w om an (by God). Therefore, the conjunction between these two, if any, is the act o f G od Almighty. The m an (in ques­tion) has no volition in the matter, (i.e. conjunction), and, therefore, no prohibition (to marry the wife’s sister or the fifth wife) can naturally be addressed to him .” (i.e. since the conjunction is the Act of G od and not the act o f the m an, there can

be no reason for the im position of any prohibition upon him).

Kanz-ud-Daqaiq A.D. 1300.In the case o f invalid marriage custom ary dow er

becomes obligatory where there has been co-habi­tation. But it should not exceed the fixed dower,and the paternity will be established, and the iddat will be obligatory.”

Kifaya (a commentary on Hedaya) Vol. I p. 1-2 . (1346). Text 65).

“ Nikah, according to dictionary, means to unite; it then came to be used for sexual intercourse as a result of a union; and, lastly, for a contract (of marriage), because it brings about union.”

“ N ikah cannot be effected except by its pillar (Rukn), emanating from Ahal (one who is com­petent to contract), and in reference to one who is the Mahal (or subject of it), as in the case of all legal contracts. The pillar (Rukn) consists of pro­posal and acceptance. The Ahal (or person com­petent to contract) is one who is Ahal (or competent) for all contracts. The Mahal (or subject of it) is one who is a fit subject for the effect of it (Hukm). The (H ukm or) effects of it are the ownership and the lawfulness (of enjoyment). Procreation and generation are its objects.” (Text 65).

Viqaya Vol. II p. 1(1349)

“ M arriage is a contract which creates ownership o f enjoyment,” that is, the lawfulness of enjoyment by the m an of the woman.

Sharhi Viqaya.“ In the case of an invalid marriage, nothing (e.g.

dow er or iddat) will become obligatory, unless actual co-habitation takes place. A mere valid retirement will not raise any obligations. But if he were to cohabit, he will have to pay customary dower, if it does not exceed the fixed dower.”

Inaya (a commentary of Hedaya) Vol. II p. 3-7 (1384).

“ Nikah, according to dictionary, means sexual intercourse; then, it is used for a marriage, as a m etaphor, because a marriage is a means for (effecting) sexual intercourse. Some have said that it is a word which comprises both meanings; and, according to its ordinary acceptation, it means a contract designed for the purpose o f creating ownership in the enjoyment (muriafa) o f the private parts o f the w om an.”

“ The general condition o f marriage is competency (Ahliyat) in matters o f sanity and majority, and a mahal or fitting subject, and this mahal is a w om an to whose marriage there is no legal bar; and the pillar or R ukn of marriage consists o f proposal and acceptance, from whichever side it may emanate. A nd the effect or H ukm o f the marriage is ( 1) the establishment o f the lawfulness o f the w om an,(2) the liability o f the man to pay dower, (3) the establishment o f the unlawfulness o f the M usahi- ra t i.e. affinity, and (4) the unlawfulness o f jo ining together two sisters.”

Inaya Vol. II p. 10.“ T he H edaya is referring to the case o f two con­

tracts, because, if he marries them by one contract, the N ikah is batil on account o f Jum a (or joining) between two sisters, and, therefore, they will not be entitled to any dower. H e has confined the case to one where the husband does not know which m arriage was contracted first, because, if he knows this, the N ikah o f the second is batil.”

Inaya Vol. II p. 74.“ Fasid marriages are e.g. (1) a marriage w ithout

witnesses (2) the marriage of a sister during the idda t o f another sister, (3) o f a fifth wife during the idda t o f the fourth wife etc; and the nasab o f the child, in a fasid marriage, is established. The Kazi will separate the husband and wife, in case of a fasid m arriage (Hedaya).

Aynes (a commentary on Hedaya) Vol. II p. 31. (1446 A .D .)

“ Because if the m an marries them by one contract, the m arriage is batil on account o f Jum a (or joining) between two sisters; and, therefore, they will not be entitled to any dower; and the Hedaya has confined the case to one where the m an does not know which is first, because, if he knows this, the marriage o f the second is batil.”

Fathul-Qadir ( a commentary on Hedaya) pp. 33-34 1456 A .D .).

“ T he expression, “ the marriage is batil” , is said by some (to mean) fasid, as mentioned ab o v e ; and

in the case o f marriage, there is no difference betw een them , (i.e. between the terms Balil and Fasid ) con tra ry to (the case o f ) sale.”

“ I f a m an marries two sisters by two contracts, bu t does not know which is first, the Kazi will separate him from them. Hedaya has confined the case to one by two contracts; because, if they are m arried by one contract, the marriages o f both shall be batil; and he has confined the case to the absence o f the knowledge o f priority, because, if he knows it, the m arriage o f the first is Sahih (valid), and that o f the second is batil.”

Zakhirat-ul-Uqba (also called Chalpi) (a com m en­tary on Sharhi-Viqaya) p. 143 (1496 A.D.).

“ T he expression, “ Fasid M arriages,” means m arriages such as a m arriage w ithout witnesses, a m arriage o f a sister during the iddat o f the other sister who has been irrevocably divorced, o f a fifth wife during the iddat o f a fourth wife, and marriages similar to these.”

Jamai-ur-Rumuz or Kohistani 1534.

P. 248. “ Tt is permissible th a t the unlawfulness be explained by fasid and batil, because there is no difference between batil and fasid, in the m atte r o f m arriage .”

P. 264. “ A nd in N ikah which is fasid i.e. batil, (e.g. a m arriage ( 1) w ith a w om an prohib ited perpe­tually o r tem porarily , o r (2) w ith a w om an on whose behalf there has been com pulsion, o r (3) a m arriage w ithout witnesses, o r (4) a m arriage w ith a slave

girl upon a free woman., or (5) a marriage within the period o f iddat, o r (6) a marriage in other ins­tances), if there has been no co-habitation (although there was a valid retirement), there is neither dower, no r iddat, nor maintenance. Tf he has had inter­course with her, (the au thor has in contemplation the case where the m an is not aware of the illegality o f a marriage with one of these women), then nasab is established from him, if a child is born within six months from the time of the intercourse, according to M oham m ad, (and according to this is the futwa), and from the time of the marriage, according to Abu Hanifa and Abu Yusuf. Fo r this reason, the mashaikhs have differed whether the F irash (or bed) in a fasid marriage is constituted by intercourse, or by contract.”

Fatawai Alamgiri Vo. II pp. 5-12 (1660 A.D.).(Text 100)

Chapter III— “ Regarding prohibited women. They are of nine classes.”

“ Class I. Concerning women who are prohibit­ed on account o f consanguinity.”

“ They are mothers, daughters, sisters, father’s sisters, m other’s sisters, brother’s daughters and sister’s daughters. Marriage and co-habitation with them are permanently prohibited, it is so laid down in M ohit Sarkhasi.”

“ Class II. Concerning women who are prohibi­ted on account o f affinity.”

“They are four in number :—(1) Firstly, wives’ mothers and other female

ancestors, both paternal and maternal.

(2) Secondly, wives’ daughters and descendants how low soever, provided the man had actually co-habited with the wife. This will be so, whether the daughter of the wife had ever lived in the house of the husband, or not. This is so stated in Sharhe-Jamai-us-Saghir of Qazi Khan.

(3) Thirdly, the wives of the sons, son’s sons, daughter’s sons and their descendants how low soever. The prohibition will attach whether the son etc. had actually co-habited with their wives, or not. But an adopted son’s wife is not prohibited to the adoptive father. This is so stated in Mohit.

(4) Fourthly, wives of father and other paternal and maternal ancestors, how high soever. With them also, both marriage and co-habitation are permanently prohibited. This is so stated in Havi by Qudsi.

Prohibition on the ground of affinity attaches only in cases of a Nikah Sahih (valid marriage), and not in cases of a fasid marriage. It is so stated in Mohit. If a man contracts a fasid nikah with a woman, the prohibition will not attach to the woman by the factum of such a fasid nikah; it will spring up, on an actual co-habitation between the parties. It is so stated in Bahrur Raiq. The prohibition will spring up, whether the co-habitation was lawful (on account of marriage), or it was under a Shubh,

or even if it was a Zina, pure and simple. It is so stated in Fatawai Qazi Khan. Thus, if a man committed adultery with a woman, the ascendants o f the woman, how high soever, and her descendants, how low soever, become prohibited to him. Similarly, the ascendants how high soever and descendants how low soever of the adulterer become unlawful to the adultress. It is so stated in Fathul Qadir.”

“ Class III. Concerning women who are prohi­bited on account of fosterage. The rule is that all those relations who are prohibited on theground of consanguinity or affinity are also prohi­bited on the ground of fosterage. It is so stated in Mohit.”

“ Class IV. Concerning women who are prohi­bited on the ground of unlawful collection. They are of two categories : (A) Unlawful collectionof strangers; and (B) Unlawful collection ofZawat ul-Arham (i.e. relations).”

“ Firstly, as regards the unlawful collection of strangers. It is not lawful for a muslim to marry together more than four women. It isso stated in Mohit. It is lawful for a free man tomarry four free women or slave girls. It is so stated in Hedaya. If a free muslim marries five women, one after the other, the first four marriages will be valid, and the fifth one will be invalid. If he marries all the five by one Aqd (i.e. he marries them all together), the marriages with all the women will become unlawful.”

“ Secondly, as regards the unlawful collection in marriage of women who are Zawat-ul-Arham (i.e. near relations). It is not lawful for one to collect together two sisters in one’s own marriage, or to co-habit with both of them, if they are one’s own slave girls. This is so, whether they are sisters by consanguinity, or, by fosterage. It is so stated in Siraj-ul-Wahhaj. The rule is that if two women are so related to each other that, if either o f them were a male and the other a female, a marriage between them would have been prohibited on grounds of consanguinity or fosterage, they can not be collected together (in marriage). Tt is so stated in Mohit. Thus, it is not lawful to collect together a woman and her consanguine or foster aunt and so on. But it is lawful to collect together a woman and the daughter of her previous husband,by another wife, because if the woman were a male, she could have contracted marriage with her previous hus­band’s daughter; though their marriage could not have been possible in the reverse case (of the dau­ghter being a male). I f the two sisters are married together by one Nikah, a separation must be effected between the man and both the sisters. I f the separa­tion takes place before the co-habitation, the women will be entitled to no dower; but, if it takes place after co-habitation, each sister will be entitled to the lesser of the stipulated or customary dower. It is so stated in Muzmerat. I f two sisters are married successively, one after the other, the second marriage is unlawful (fasid); and it is necessary for

the man to separate from the woman (married last). If the Qazi comes to know of it, he must separate them. If this separation takes place before the co-habitation, no legal results will flow from such a marriage. But, if the man separates from her after co-habitation, the woman will become entitled to her dower, and the lesser o f the stipulated or customary dower will become payable to her; the woman will have to observe Iddat; and the issues will be the legitimate children of their father; and the man will not be allowed to co-habit with his wife {i.e. the sister previously married, and whose marriage with him will not be affected, in any way, by his subsequent marriage with her sister) until the completion of her sister’s Iddat. It is so stated in Mohit Sarkhasi. If the two women are married by two Nikah, and it is not known which was held first, the husband is to be asked to explain. If he does so, it will be accepted; if, however, he does not explain which one was held first, he must be separat­ed from both of them. It is so stated in Sharh-il- Tahavi. In this last case, if their dowers were equal, and were specified at the time of the Nikah, and the Talak took place before co-habitation, they will get half of one dower between them. If their dowers are different, each will get one-fourth of her stipulat­ed dower. If no dower was specified at the time of the nikah, a single present is to be made to both of them together. If, however, the separation took place after co-habitation (with both), each sister will be entitled to her full dower. I t is so

stated in Tabi-een. All the rules mentioned above, (relating to marriages with two sisters) apply pari passu to marriages with any two women who can not be collected together in marriage. It is so stated in Fath-ul-Qadir. If the man wants to marry either of them, after separation, he can do so immediately, provided the separation took place before co-habitation with either. Tf it took place after co-habitation with them, he cannot marry either of them until the expiry of their Iddats. If the Iddat of one has expired, but not that of the other, he can re-marry the one whose iddat has not expired, but not the other one (i.e. one whose iddat has already expired), until the Iddat of this one also expires. If he had co­habited with only one of them, he can immediately marry that one, but not the other one, until the iddat of her sister (i.e. the one with whom he had co-habited) is completed. When the latter’s iddat is completed, he can marry afresh whichever he likes. It is so stated in Tabi-een. M oham m ad says in Jamai that if a man appointed a person as his vakil (agent) and authorised him to marry him to a woman, and then he appointed another person as his vakil for the same purpose, and they both married him (acting independently of each other) to two women who were foster-sisters, both the marriages will be unlawful ( b a t i l ). It is not lawful to marry the sister of a M o’attada (a woman who is in her Iddat), whether the Iddat is on account of a revocable or an irrevocable

divorce, or it is due to a triple divorce, or on a separation after a fasid Nikah, or on account of a co-habitation under a shubh. Just as it is not lawful to marry a sister during her sister’s iddat, similarly, one can not marry during the iddat of a woman, another woman who stands to the M o’at- tada in such a degree of relationship that the two of them could not have been lawfully collected in marriage, nor can the man marry four other women during the iddat of the M o’attada. It is so stated in Kafi.”

“ Class V. Concerning marriage with a slave- girl upon a free woman, or together with her.”

“ It is not lawful for one to marry a slave girl either upon a free woman, or together with her, at the same time. It is so stated in Mohit Sarkhasi.”

“ Class VI. Concerning women who are connect­ed with others.”

“ It is not lawful for a muslim to marry the wife or the m o’attada of another person. It is so stated in Siraj. A m o’attada is so prohibited whether her Iddat is due to a divorce, or to the death of her husband, or to a co-habitation with someone under a fasid nikah, or under a shubh of nikah. It is so stated in Badai. If one marries a woman who is already the wife of another, and the m an does not know that she is a married woman (whose husband is alive), and he co-habits with her, the woman will have to observe iddat. If, however, the m an does know that she is already married to another, no iddat is incumbent on her, so much so

that her husband can immediately co-habit with her. I t is so stated in Fatawai Kazi Khan. But the person who is the cause of her iddat can marry her, as is stated in Mohit, provided there is no other bar to their marriage with each other, as Badai points out. Abu Hanifa and M ohammad are of the view that one can marry a woman who is preg­nant from adultery, blit he should not co-habit with her until the delivery of the child. Abu Y usuf is o f the opinion that such a marriage will not be Sahih. But the Fatwa is according to the opi­nion of Abu Hanifa and M ohammad. It is so stated in Mohit. It is stated that the param our of the woman who had committed adultery with her which caused her pregnancy, can marry her, and co-habit with her, during her pregnancy, and such a marriage and co-habitation will be lawful, according to all, and the woman will be entitled to her maintenance, according to the opinion of all. It is so stated in Zakhira.”

“Class VII. Concerning women who are prohi­bited on account of shirk.”

“It is not lawful for a Muslim to marry a fire- worshipper or an idolatress, even if they are free women. I t is so stated in Siraj-ul-Wahaj. I t is also not lawful for a Muslim to co-habit with a slave girl who is a fire-worshipper or an idolatress. It is lawful for a Muslim to marry a kitabia woman, whether she belongs to a hostile country or is a Zimmi, and whether she is a free woman or is a slave girl. It is so stated in Mohit. It is not lawful for

a M urtid (an apostate from Islam) to marry an apostate woman, or a Muslim woman, or a kafir woman. Similarly, an apostate woman cannot marry anyone. It is so stated in Mabsut. It is not lawful for a Muslim woman to marry either a Mushrik (idolator) or even a Kitabi. It is so stated in Siraj-ul-Wahhaj. An idolatress and a woman who is a fire-worshipper can marry any kafir, but not an apostate from Islam. It is so stated in Fatawai Kazi K han.”

“ Class VIII. Women prohibited on account of ownership.”

“ It is not lawful for a (Muslim) woman to marry her own male slave, nor a slave who is owned by her, in partnership with another person. If a person marries his own female slave, or his Mokatiba, or his Modabbera, or his umme-walad, or a slave girl of whom he is a part owner, the marriage will not be lawful. It is so stated in Fatawai Kazi K han .”

‘‘Class IX. Concerning women who are prohi­bited on account of talak.”

“ It is not lawful for a man to marry a free woman whom he has divorced thrice, until she takes a second husband. N or can he marry a slave woman whom he has divorced twice ; and just as he can not marry such a twice divorced slave woman, similarly, he can not co-habit with her by right of ownership, i.e. by purchasing her as his own slave girl). It is so stated in Fatawai Kazi K han.”

(11). Macnaghten.“ A man may not marry his m o ther......... nor

is it lawful for a man to be married, at thesame time, to any two women who stand in such a degree o f relationship to each other, that, if one of them had been a male, they could not have inter-married, p. 57.”

“ If A first marries B, and later on marries C who is the uterine sister of B, the marriage of A with B will stand good, but A ’s marriage with C is null and void, and C is not entitled to dower (case X). P. 257. But B will be entitled to her full dow er.”

“ H ad the two sisters been married by the sameman at the same time, or had the priority o f one or the other marriage not been ascertainable, they would both have been invalid. This supposes the former wife to be alive, and the marriage with her not to have been dissolved, (p. 258). The above doctrine is contained in Moheet cited in Fatawa-e- Alamgiri Tit-M ar 11.”

(12) Wilson.“A man is forbidden to have two wives at the

same time, so related to each other by consangui­nity, affinity or fosterage that, if either o f them had been a male, they would have been prohibited from inter-marrying.”

(13). Abdul Rahman pp. 80-1.“ If one marries two sisters, who are unm arried

and are not observing iddat, by one contract, the marriage with both is void; if one sister is observ-

ing iddat, the marriage with the other sister will be valid. If the two sisters are married by two successive contracts, the marriage contracted first is valid, and the second marriage is void.”

“ If it cannot be established which marriage was contracted first, both marriages will be radically void, unless one was void ab initio.”

“ If the husband co-habits with the sister married later, he cannot co-habit with her sister whose marriage remains valid, till the expiry of his (second) wife’s iddat.”

(14) Abdul Rahim p. 330.

“ The author of Radd-ul-M uhtar regards the marriage of two sisters, at one and the same time, as an instance of a fasid marriage, but it was held to be void in Aiz-un-nisa K hatoon Vs Karim-un- nisa K hatoon 23C. 130.’ (Note, He has apparently misunderstood Rudd).

(15) Saksena p. 219.“ The bar o f unlawful conjunction renders a

marriage irregular, not void.”

After reproducing the Quranic verse, “ And (it is unlawful) that ye form a connection between two sisters except bygones,” he leaves it at that, and neither considers its clear meaning nor its implica­tions. Later on, he notes the conflict o f opinion between Calcutta and Bombay High Courts and says that the Bombay view seems to be more correct.

(16) Amir Ali p. 326.

“The relative prohibitions spring from causes which render the marriage only invalid, for the cause which creates the bar may be removed at any time, thus rendering the union lawful, ab initio, with­out the necessity of a fresh contract. This, in fact, is the test of an invalid marriage. Thus, one may not marry two sisters by the same contract, or one after another, whilst the first marriage is subsist­ing. But if such a marriage is contracted, in fact, it is invalid (fasid), and not void (batil), for the prior marriage may become dissolved, at any time, by the death or divorce of one of them, and thus validate the second union. Though the judge may separate them, yet, if the marriage is consummated, the issues are legitimate. In such cases, whilst the children inherit from the father, their mother does not.”

These two statements of Amir Ali that (!) in cases of relative prohibitions (and marriage with two sisters is put under it) the cause which creates the bar may be removed at any time, thus rendering the union lawful, ab initio, without the necessity of a fresh contract, and that (2) if a marriage with a wife’s sister is “contracted, in fact, it is fasid and not batil, for the prior marriage may be dissolved, at any time, by the death or divorce of one of them, and thus validate the second union,” are not supported by any other author. Even Baillie who (in Ch. VIII. of Vol. I) expresses the view that a marriage with a wife’s sister is fasid and not batil, is totally silent

on the question whether it will be necessary to go through another nikah with the second sister, on the removal of the bar, by the death or divorce, of her sister who was married first. Other jurists, from Tmain Abu Hanifa downward, (including Fatawae-Alamgiri ) expresslv state that, in such a case, a fresh nikah is necessary. In the case where both sisters are married by one contract, or it is not known which one was married first, Hedaya, Qazi Khan and others clearlysay that the nikah with both the sisters isbatil, but the man can immediately marry either o f them, after separation from both, if he had had no sexual intercourse with either of them. Ifhe had such a sexual intercourse with them, hecan marry either after their iddats are over. In any case, a fresh nikah is obligatory. Amir Ali’s view that, on the removal of the bar, by death or divorce of one sister, the marriage with the other sister will automatically become valid, and that there need not be any fresh contract of marriage, is totally unsupported by any authority. He himsslf does not cite any authority. In view of the con­sensus of opinion in favour of the opposite view, Amir Ali’s mere ipsi dixit cannot be accepted.

On page 401, he says:—“ If a person charges two “ vakils” to marry him to some girl, and they both, acting independently of each other, marry him to two sisters, the contract prior in date will be valid, but the latter will be voided, without the interven­tion of the Qazi, or a regular divorce from the

husband. If priority cannot be discovered, botf? marriages will be voided,”

“ If two sisters have been married to one man,, by one and the same contract, both marriages are void, and no dower will be payable, if the separation' takes place before consummation.”

Thus there is a direct contradiction between the statements made by Amir Ali on p. 326 and on p. 401. On page 326, he categorically states, that if two sisters are married by the same contract, these marriages are invalid and not void; but on p. 401,. he states, equally categorically, that they are void. Again, on page 326, he states that if two sisters are married separately, the second marriage is fasid; but on p. 401, he states that, if two sisters are m arri­ed to the same man, one after another, by two vakils, acting independently of each other, the first marriage is valid, while the second one will be voided. Nowy

at there to distinguish between a marriage on racte by a man himself and one contracted

t rough a vakil ? Amir Ali seems to have been m rf116 0 ^ ^ ^nilhe s version o f Fataw ae Alamgiri,. an aving once convinced himself that every marriage which was not prohibited on grounds o f consanguinity, affinity or fosterage was fasid, he has strongly pressed this v.ew in his book.

rit « , l “,b0VC c,uotat'ons from the accepted au tho­r s e lead one to the following conclusions.

with t w n ^ t ^ Uran P*aces the case o f a m arriage with two sisters on the <?amP i i • ,mother or a daughter ' " S ° n6 W“ h

(2) Imam Razi in his Tafsir Kabir, Hedaya, Kifaya, Qazi Khan Dur-rul-Mukhtar, Radd-ul- Muhtar, Ibn Arabi, Macnaghten, Wilson and Abdul Rahman put, on the same plane, a marriage with a mother and one with two sisters. They do not differentiate between permanent and temporary prohibitions.

(3) Mohit, as cited in Radd-ul-Muhtar puts such a marriage (with two sisters) on a lower level -of prohibition. Fatawa-i-Alamgiri also does the same. Tahtavi, if taken literally, also holds the same opinion. Baillie has emphatically adopted this view. Sir Abdul Rahim says that Radd- ul-Muhtar considers it a fasid marriage, but it is respectfully submitted that his statement is not borne out by a careful study of Radd-ul-Muhtar itself. Then, again, Abdul Rahim refers to the Cal­cutta case (23 Cal. 130). He does not examine the case, nor does he express any considered opinion of his own. Amir Ali is emphatically of the opi­nion that a marriage with all women, with whom marriage is not permanently prohibited, is merely fasid and not batil. Therefore, really five autho­rities hold the view that such a marriage is merely fasid and not batil.

I have said nothing about the text writers of more recent times who have relied upon, and taken their law from Baillie and Amir Ali e.g. Tyebji, Mulla and Saksena. They have not considered the original authorities, and have relied upon second­hand knowledge of the law on the subject.

The question has often come up for decisions in Indian courts. The first case is Shareefunnisa vs. K hajurun-nisa K hanam 3 S. D. A. Sel. Rep, 210. It was held by the Sadar Dewani A dalat, after consulting the law officers o f the court, that: a m arriage o f a Muslim with his wife’s sister, his wife- being alive and undivorced, was null and void. The M ufti o f the court gave th s following opinion.

“ ft isy however, necessary to enquire what is the legal consequence o f marrying two sisters, suppos­ing no other legal objection to have existed. It: is unlawful, however contracted, whether by one o r by two contracts.”

T his case is cited in M acnaghten, on p. 257, as case X , in the following words,

“ Q. If A, having married B, should afterw ards m arry her uterine sister C, during the lifetime o f B, and if such second m arriage should be invalid according to law, will the first m arriage, neverthe­less, hold good, and will B be entitled to dower.

R. The m arriage o f A with B will stand good, notw ithstanding the fact o f his having subsequently m arried her uterine sister C. As C, however, by reason o f her affinity, falls within the prohibited degrees o f relationship, her m arriage with A is null and void, and she is entitled to no dow er; b u t th is fact does not invalidate the prior contract w ith B, and on the death o f A, B will be entitled to the full am ount o f her dower out o f his estate.”

N ext may be m entioned the case o f Aizunnisa K hatoon Vs. K arim -un-nisa K hatoon I.L.R . 23 Cal. 130 (1895), (Sir W. Petheram , C.J. and Beverley, J), which is directly in point. It was an adm inis­tra tion suit. The facts o f the case were that one G olam Ali, a Sunni, m arried A izunnisa and, during her lifetime, m arried her uterine sister, Izzatunnisa, and was survived by both his widows and by chil­dren by each wife. The question was whether his m arriage with Izzatunnisa was valid, according to M uslim Law, she being the uterine sister o f A izun­nisa who was alive and in the m arriage o f G olam Ali. The court, after considering all the original authorities, a translation of which is given in the appendix attached to their judgm ent, held that the m arriage o f G olam Ali with Izzatunnisa was batil, and tha t G olam Ali’s children by her were illegiti­m ate and, consequently, could not succeed to the inheritance, as the heirs o f G olam Ali.

This case has been very severely criticised by A m ir Ali, 4th ed. (See Vol. II, pp. 390-3) on the following grounds :

(1) The judges quoted a passage from Fatawae Alamgiri, m entioned in Baillie, at page 32, and then proceeded to discuss this passage. On p. 145 o f the report, they said that this passage was taken from M ohit o f Sarakhsi ( d. 1096 ). As the original work was no t available, its context could not be found out, nor could it be ascertained how far M ohit’s views corresponded with the opinion expressed in the Fataw ae Alamgiri. They further said that, as

m any opinions of M ohit and Fataw ae Alamgiri are directly challenged by R udd-ul-M uhtar, neither o f those books could be considered as infallible.

Amir Ali says that R udd-ul-M uhtar never chal­lenges Fatawae Alamgiri, except, only, in respect o f a marriage between a Muslima and a non-M uslim , where it differs from Mohit.

Amir Ali’s criticism may be answered thus. Rudd-ul-M uhtar also disagrees with the opinion of M ohit in respect of a marriage with a married woman and with a woman in her iddat. Fataw ae Alamgiri is not any original composition. It is merely a collection of the opinions of ancient jurists. If M ohit is proved to be wrong on some points, and tha t wrong opinion is included in the Fataw ae Alamgiri, as seems to have been done in this case, naturally, it can safely be asserted tha t such an opinion cannot be accepted. N either M ohit nor Fatawae Alamgiri is infallible in the sense that it can unquestioningly be followed.

(2) The second criticism of Am ir Ali is rather uncharitable. On p.391 he says: “ I t is an error to say that the marriage of a second sister rests precisely on the same basis as a m arriage with a m other-in-law or a daughter-in-law. The learned judges naturally im ported English ideas into the consideration o f the question, and looked at it through English spectacles, for the English law, as it stands, regards the wife’s sister as being within the prohibited degrees, and as one with whom a m arriage is illegal, even after the wife’s death.” W hat he said about

the rule o f English law was correct. But it may be respectfully pointed out that he is not correct in saying that, in M uslim law, a m arriage with a wife’s sister is, in any way, different from marriages with m others-in-law or daughters-in-law. To say so, is to ignore the very words o f the Q uran (which A m ir Ali entirely ignores all through his discussion, on this point) which places all the three cases on exactly the same basis i.e. “ Prohibited to you are your m others...and your wives’ m others,...and the wives o f your sons proceeding from your loins and the conjunction o f two sisters in wedlock (at one and the same time).” Thus the Quranic rule regarding a m arriage with two sisters is similar to the English rule to some extent, and the judges might have been spared this rem ark.

(3) Am ir Ali’s third criticism was that the Muslim Law was m isunderstood, because under its rules “ whilst a wife’s m other and a son’s wife are perpetually and absolutely forbidden, a wife’s sister is forbidden only so long as the first marriage is not term inated by death or divorce. I f the wife is divorced, the mom ent she has completed her iddat, the man can lawfully m arry the sister.” But the short answer to this argum ent is that the question is regarding a “ Wife’s Sister” i.e. the sister o f a woman who is, in praesenti, the wedded wife o f the man. The question is not regarding the sister o f a woman who was, at some period in the past, in the marriage of the man. Besides this, if her sister is divorced, and she has

completed her iddat, she will- cease to be styled the wife of the man, and this second sister will no longer be a “ Wifes’ Sister.” A “ Wife’s Sister” must be distinguished from an “ Ex-Wife’s Sister.” Amir Ali has overlooked the distinction between an existing wife and an ex-wife.

(4) Amir Ali’s fourth ground of attack is that the judges failed to distinguish between the validity of a marriage and the establishment of N asab which creates the right of inheritance. He proceeds on to point out that “ under the Hanafi Law, only a child o f fornication does not own nasab to his father, and is excluded from his inheritance.” But it may be answered that it is on the validity of the m arriage that the legitimacy of the child depends, and on the legitimacy of the child depends his right o f inheri­tance. The one is the cause, and the other is its legal effect. It is absolutely necessary to m ake the legitimacy o f the child depend upon the validity of the marriage o f its parents. N obody denies, and the judges also did not deny, that under the Hanafi Law (why qualify “ Law” by “ H anafi?” It is a recognised rule o f Muslim Law which is accepted by every school—sunnis and shias alike) only a child of fornication owns no nasab to his natural father, and is excluded from his inheritance. But the question is, who is a “ Child o f fo rn ication?”

(5) Am ir Ali’s last line of attack is that “ I t is nowhere laid down that if one marries two sisters and co-habits with them, the connection is zina, and that he exposes himself to H udd, which is the only

test for finding whether the connection is adulterous or no t.” It may be pointed out that in such a case the co-habitation with both (if they were married by one contract), or, with the sister married last, (if they were married, one after the other), does am ount to Zina. The factum o f the imposition or non-imposition of Hudd is besides the point. In many cases (e.g. in marriages falling under the category o f Subha-Fil-Fail) the act of co-habitation admittedly amounts to zina, and yet, the parties may escape the Hudd. Hudd is not imposed for every act of co-habitation which is Zina. As regards his first point, that it is nowhere laid down that co-habitation with two sisters, if married together, will am ount to zina, it may be pointed out that, if it is not zina, why should it be made a duty of the Qazi, suo motu, to separate the par­ties ? Why should it be possible to the parties to separate w ithout a divorce and without the inter­vention o f the Qazi ? And lastly, why should there be this rule which is mentioned by Amir Ali himself, that, if they separate before consummation, the marriage is devoid of all legal results of every kind. The only explanation for these consequences is that such a marriage is unlawful, and the co-habitation, under its cover, is nothing but a zina, though the parties may escape Hudd.

This is the leading case, upholding the view that a marriage with a wife’s sister is void, and, con­sequently, the children of such a marriage are illegi­timate. The other view (i.e. Amir Ali’s view) has

been taken in another leading case reported in I.L.R- 41 B. 485. All subsequent cases have been decided on the authority of one, or the other, o f these two cases. Since the Bombay case is the leading case upholding the other view, I think it necessary to consider it at length.

Tajbi v Mowla Khan. I. L. R. 41 B. 485 (1917), decided by Sir Basil Scott, C J . and Beaman, J.

Facts.—Hasan Khan married Amabi and, later, married her sister, Sadabi, during the lifetime o f Amabi, and without divorcing her. By Amabi he had no issue, but by Sadabi, he had a daughter Tajbi. In 1868, he died, leaving behind him the two widows, the daughter and a first cousin, Mowla Khan. Later, the widows died, and Tajbi started the suit against Mowla Khan for the recovery of her share of the inheritance. The lower court dismissed her suit, and she appealed to the High Court. Mr. Tyebji was her counsel, and he sub­mitted that the learned judges of the Calcutta High Court fell into four obvious errors : —

(1) They did not realise the weight to be attach­ed to Fatawae Alamgiri.

(2) They ignored the fact that the Q uran did not make the issue illegitimate.

(3) They did not adequately realise the distinc­tion between tem porary and perm anent prohibitions, and the effect o f consummation.

(4) They erroneously assumed that such a marriage was opposed to the customs o f the people, and was never met with, in practice.

Mr. Coyajee, for the respondent, subm itted that the Calcutta case was rightly decided, because the decision was based both upon Q uran, and upon the m ajority o f texts which outweigh Alamgiri.

Beaman, J. delivered the judgm ent o f the Court.I will first give extracts from his judgm ent and

will then discuss them.(1) “ Neither the ratio decidendi nor the mass

o f materials upon which the Calcutta case is based, w arrant a Court in over-riding so high and so clear an authority as the Fataw ae Alamgiri” (I shall refer to it as Alamgiri, for brevity’s sake), (p. 490).

Then, a t the close of his judgm ent, he says, on p. 508 :— “ Surely, the courts will be well advised to accept the authoritative statem ent o f the law” as laid down in Alamgiri. On p. 509, he says :—“It has the support of such a great m odern text book writer as Baillie. His Book I Ch. VIII appears to us to reach conclusions by unanswerable reason­ing, and while those conclusions may be his own, they are the conclusions of a writer o f profound knowledge intimately versed, at first hand, with all the best writings of M oham edan Lawyers. Amir Ali, Tyebji and Abdul Rahim are in substantial agreem ent.”

This shows that he was much impressed by the weight and authority o f Alamgiri, Baillie and Amir Ali. Alamgiri was not any officially prom ulgated Code. It was ju st a compilation, or a collection, of the views of the ancient jurists, collected and arranged by a num ber of Ulemas,

possibly under the patronage of Alamgir. It does not claim to be anything other than a digest con­taining such views, and it gives the names of the jurists whose views are incorporated therein. 1 have discussed, elsewhere, how Baillie and Amir Ali have fallen into errors in discussing the topic of Batil and Fasid marriages. Their acceptance of the views expressed in Alamgiri cannot add to the authority of the Fatawae Alamgiri.

(2) “In interpreting revealed books, like Q uran, the courts should go by their interpretation by com­mentators. In administering Hindu Law, the English do not attempt to interpret shrutis, but accept their interpretations by their commentaries, Mitacshara, Mayuka and Dayabhag.” He then cites the well-known case of Aga M ahom ad Jaffer Bindamin Vs. Koolsoom Bibi. I.L .R .25 Cal. 9 (P.C.) in which their Lordships of the Privy Council expres­sed themselves thus, on p. 18 :—“ They do not care to speculate on the mode in which the text quoted from the Quran which is to be found in Sura 2. 241-2 is to be reconciled with the law in the Hedayah, and with the author of the passage quoted from Baillie’s Imamia. But it would be wrong for the court, on a point of this kind, to attem pt to put their own construction on the Q uran, in opposi­tion to the express rulings of the com m entators of such great antiquity and high authority” The adverse effect of this rule of construction, upon Muslim Law, cannot be over-estimated. L ike the Hindu Shrutis, Quran was also relegated to the

background, during the British regime. Though it is the fountain-source of Muslim Law, yet it was seldom referred to by judges. It was in rare cases that some judges like Mahmood, J. or Karamat Hussain, J, based their decisions on Quran. It was this practice of ignoring Quran and replacing it by commentaries, that made Beaman, J. declare that the courts could look for no better authority than Alamgiri, and that they need not take upon themselves the task of scrutinising the various interpretations put upon the Quran.

(3) Beaman, J. was of opinion that Alamgiri is to Muslim Law what Justinian’s Institutes were to Roman Law. But he forgot that the latter was promulgated by Justinian as an official and authoritative law book. Perhaps by Institutes he meant Corpus Juris Civilis. The whole of this work was compiled under the direct authority and supervision of Justinian who him­self decided which view was to be adopted, in case of a conflict among the jurisconsults, and quite often he brushed aside both the views, and promulgated an entirely new law which was incorporated in the Corpus Juris Civilis. In the case of Alamgiri, no such thing was done. It was merely a digest of the views of ancient jurists, from whose books extracts were taken. No greater sanctity or authority attaches to them than what the pres­tige of their authors can claim for them.

(4) He criticises the Calcutta judges for express­ing a desire to look into Mohit, and says that tWQ

English judges could not understand it bettert hanthe authors of Alamgiri, and that they should haverealised that its incorporation in Alamgiri meantthat the opinion of Mohit was accepted by thecompilers of Alamgiri as a correct enunciation of law.

(5) Beaman, J. says on p. 496 that to determine whether a marriage is void or irregular, one has to see whether any of the legal consequences of a valid marriage (dower, iddat and nasab) flow fromit under any conditions. If they do, the marriagecannot be void.

Here like so many others, he has fallen into e usua allacy. All these legal consequences

flow from a valid marriage. The validity o f amarriage depends upon a number of factors themost important of whirl-, ic

/ S the competency of theparties to enter into a contract .competency will be lackina ‘f m arriage'hibiteH tn mo f 8’ lf the Parties are P i ­nioned to marry each othpr t i , 1to the question w h e th e r / ' ’ W “ me ^oarties ic nmh'K'* a marriage between theparties is prohibited bv law if • -i • j

- « « * *

He a y s ° h arm T h e l;aesePorf n UndS “ " ° Vel ‘he0^ 'if it be found that as a maff temP°rary Prohib itlon’ was void, because'the n r ^ h v • th® contracttime it was entered i„ t0 stm ^ 10/ 1 t f,ubsisted at thS followed by consummation 'th ° ° ntraCtn’ the legal results o f

a valid marriage (dower, iddat and legitimacy of the child) will follow. He admits that such a contract will be void. On p. 507, he says this, quite directly and forcefully. He says : “ Broadly speaking, no doubt, such a marriage as that of Saida Bibi, in this case, is prohibited and would be described as void; perse, it certainly is void, in the sense that it is expressly forbidden.” On p. 508, again, he says : “ In every case of the kind, the woman in question must be Haram, and the difficulty is to decide when, although Haram, she has, in fact, married a man, and the marriage has been consum­mated, it is to be treated as absolutely void, with­out any legal consequences at all, and when it is to be treated as bad, indeed, in inception, yet capable of having legal consequences.” Then he says that the only ground on which this decision can be made is to see whether the prohibition is permanent or otherwise.

The above extract shows that :—(1) He accepts that a marriage of this kind is

prohibited, bad in inception and haram. Per se, it is void.

(2) But, if co-habitation takes place, the legal results of a valid marriage (dower, iddat and legi­timacy) will follow. In other words, he would apply the doctrine of factum valet to this branch of law. Now, on sound juristic principles, this doctrine can not come into play to legalise an act definitely for­bidden by law. In Budansa Rowther Vs. Fatima Bi 22.I.C. 697 (Mad.) it was observed by the learned

with a wife’s sister void. Then he refers to Hedaya (1190 A.D.) which calls them unlawful. Then he refers to Kanz-ud-Daqaiq (1300 A.D.), and then to Sharhe Viqaya (1349 A. D.). Both of them hold such marriages invalid.

Then he mentions Inaya (1384 A.D.), and him ­self says that it holds that a marriage with a wife’s sister is absolutely void.

Then he mentions Aynee (1446 A.D.), and then Fateh-ul-Qadir (1450 A.D.). Both of them hold them batil. Then he mentions Zakhirat-ul-U qba (1496) which gives a list of invalid marriages, and Beaman, J. himself says that it does not seem to hold such a marriage as invalid (fasid). Then he quotes Jamai-ur-Rumuz (1534) which says there is no difference between Batil and Fasid marriages. Then, lastly, he gives the passage from Alamgiri which clearly calls such a marriage fasid.

Thus, it will be noticed that all the authorities he quoted, hold that a marriage with a wife’s sister is void, and not merely invalid, and this Beaman, J- himself admits. The only exception is Alamgiri. In spite of this state of authorities, he s a y s :

By 1660 the best Mahomedan Legal opinion had expressed itself very definitely in favour of regarding such marriages, as the one we are dealing with, to be fasid only.” On p. 509, the sums up thus : “AH authority appears to us to point one way. Against this there is nothing but the judgment in 23 Cal. 130”

judge : “As regards the doctrine of factum valet, neither in the Hindu Law, nor in the Muslim Law, does it ever excuse the violation of a legal rule so as to make acts performed in such violation legally valid. That doctrine only means that a precept which merely belongs to the domain of ecclesiastical admonitory precepts has not, in the domain of secular law, the same force as a positive and a clear rule o f the Secular law has.” In that case, a H indu married woman adopted Islam, and in the life­time of her Hindu husband, married a Muslim and had children by him. On the death of her Muslim husband, the children brought a suit to recover their share of the inheritance. It was held that her second marriage was void, and that her children by her second marriage were illegitimate. According to the test laid down by Beaman, J, her marriage would be merely irregular, and the children would be legitimate, because here too, the prohibition was not permanent, but merely temporary. The diffi­culty confronting every supporter o f the view that marriages with all tem porarily prohibited women are merely invalid, is that he has got to be illogical, and that his arguments end in reductio ad absurdum. Beaman, J. rejects the view that a marriage with a temporarily prohibited woman, if contracted while the prohibition lasts, should be held void, on the ground that “ such a view would destroy one of the principles (he does not say w hat that principle is) upon which the sound systematic administration of this part of the M uslim Law in our courts must rest.” (See p. 498).

(7) That Beaman, J. took no pains to under­stand the basic principles underlying the law of Muslim Marriage, is amply proved by what he observes on p. 500. He says : “ Many of these early writers, in their desire to define and distinguish and systematise, went far beyond their powers, with the inevitable result, that instead of clearing up the points they were discussing, they have ren­dered them hopelessly obscure. We need only refer to the treatm ent of errors in acts and errors in subject. That dissertation which is meant to be extremely subtle, profound and semi-metaphysical, is, in fact, only unintelligible verbiage.”

It is extremely doubtful whether one can fully understand the Muslim Law of marriage without fully understanding the doctrine of “ Shubh.”

(8) Beaman, J. then reviews original texts. He begins with Sale’s translation of Quran and observes (in respect of Quran) that “what was forbidden (by Quran) was not a marriage with a wife’s sister, but joining together two sisters i.e. this prohibition is against unlawful conjunction and, from its very nature, temporary. H ad the text borne the mean­ing put upon it by Calcutta, the wife’s sister would have been expressly prohibited as all other women are.” It is not disputed by any one what he says in the first sentence. His last sentence is absolutely unintelligible W hat uncommon meaning has been put upon it by the Calcutta ruling?

Then he cites a passage from Qazi K han (1190 A .D .),and rem arks that he certainly holds a m arriage

E M B A S S Y O F P A K I S T A Ndjakarta- indonesia

No. Aufrust 16, 19^3

Prof, Sujono S.PI.,Chief of the Faculty of law,University of Indonesia,DJAKARTA /

Deaf f.ir,

On "behalf of the I.'inistrv of Dedication of the

Governnent of Pakistan, T ar eerirec to present p cony

of the book entitled "Studies in Iunlir. I.p.v; V o U -

Batil and Fasid TJarria/res1' by Dr. F .U .A . °iddiqui, Dean

of the Faculty of law, University of Dacca, East Pakistan,

for the library of your University.

Kindly aclmovjle&pe rece ip t,

As a matter of fact, the only authorities which support his view are Alamgiri, Baillie and Amir Ali. I have already discussed the weight to be attached to them.

The next important case is Ata Mohammad Vs. Saiqul Bibi 7.I.C. 820, decided by Karamat Hossain, J. in the Allahabad High Court.

In this case, one Mst. Rakima, a muslim married woman, was divorced by her husband. As her husband was a minor, the divorce given by him was inoperative. After such an inoperative divorce, she married Hashmat Ullah, a cousin of her first hus­band, who was aware of her first marriage and her subsequent divorce. By Hashmatullah, she gave birth to the Plaintiffs who started the present suit for the recovery of their shares in the inheritance of their father. Karamat Hussain, J. reviewed a large num­ber of original authorities, and came to the conclu­sion that :

(1) Mst. Rakima’s marriage with Hashmat Ullah was Batil,

(2) Consequently, the offsprings of such a union were illegitimate.

(3) The result was that these children were not entitled to get any share in the inheritance of their father.

The next case is Mst. Kaniza Vs. Hasan Ahmad Khan. A.l.R. 1926. Oudh p. 230 (decided by Ash­worth and Raza, JJ.).

In a short judgm ent, their Lordships observed as follows :

“ In 23.Cal.130 (Aizun-nisa K hatoon Vs. Karim - un-nisa K hatoon) it was held that a marriage with the sister of a wife who is legally married, is void, and that the children of such a marriage are illegi­tim ate and can not inherit. This case was dis­sented from in Tajbi Vs. Mowla Khan I.L.R. 41. Bombay 485, where it was held that the Muslim Law does not place unions in two categories—valid and invalid—but in three categories of void ab initio (batil), forbidden but not entirely void, if consum­mated ( fasid ), and, lastly valid. The Calcutta view has also been dissented from by Amir Ali and Tyebji.”

“ We are not disposed to re-hear again the argu­ments respectively in favour of the two views. We consider that the arguments set up by Beaman, J. and by the authorities quoted against the Calcutta view hold the field, and that the Bombay view should be followed, supported, as it is, by the views of the eminent authorities mentioned.”

The next case is Taliamand Vs. M oham mad D inI.L.R. 12. Lahore 52, (Tek Chand and Agha H aidar JJ.).

This was a case of a marriage with the sister of an existing wife. On the death of the husband, the question arose whether his children, by the s e c o n d marriage, were legitimate.

Agha Haidar, J. delivered the judgm ent o f the Court and said : So far as the question of legiti­

macy is concerned, T am inclined to accept the case 41.B 485, as representing the correct view of the law. I do not think it necessary to paraphrase the very learned and elaborate judgment of Beaman, J. where a number of important authorities on the subject are cited and discussed, at length. The learned judges expressly dissent from the decision in 23 Cal. 130, and I respectfully agree with them.I, therefore, take it that under the Muslim Law governing the Hanafi sect, marriage with a wife’s sister during the subsistence of the previous marri­age with her sister is only fasid (invalid), and not batil (void ab initio), and that the issue of such a marriage is legitimate and inherits from the father. 41.B 485 was followed by Raza, J. in A. I. R. 1926 Oudh. 230. I may also observe that the view expressed in 41. B. 485 has the support of such an eminent jurist and commentator as Amir Ali, and, moreover, this view is based upon Fatawae Alamgiri which is a digest of cases compiled under the patronage of Emperor Aurangzeb from whom the work derives its name. According to Amir Ali, it is a work of a compre­hensive nature, and of great authority in India, and is referred to, by the western scholars, as Hindiah. Its importance further appears from the fact, that Mr. Neil Baillie paraphrased the book in English, for the benefit of the law courts, established in India.”

With the utmost respect to the learned judge, it may be submitted that he might, more profitably

have based his judgm ent on a consideration of the original authorities. He seems to have been over­impressed by : —

(1) The judgm ent of Beaman, J. in 41. B. 485 and of Raza, J. in 1926 Oudh 231, which, as I have shown above, are not very convincing judgm ents themselves.

(2) The opinion of Amir Ali. I have already shown that Amir Ali has committed many errors of a serious nature in his treatm ent of the subject o f Batil and Fasid Marriages.

(3) His references to Fatawae Alamgiri shows that he was attaching an undue weight to thiscompilation, and his reference to Baillie is extremely amusing.

In this state of authorities, the question is whether Mohit, Fatawae Alamgiri, Tahtavi, Baillie and Amir Ali together constitute such an array of authorities as to outweigh the formidable array of authorities, headed by the Quran itself on the other side. If the authorities are sifted still more closely, it will be found that M ohit alone is res­ponsible for the view that a marriage with two sisters is merely fasid, and not batil. Fataw ae Alam- gm expressly incorporates the passage of M ohit.

ai lie admittedly bases his opinion on Fataw ae

t ^ milarly’ M ° hit’S °Pini°n ^ quoted inRud-dul-M uhtar which expressly differs from it in respect o f marriages with a M ushrika, a M o’attadda and a married woman, but does not say anything, in so many words, about marriages (1) with two

sisters, or (2) with a sister during the iddat of the other sister, (3) or with a fifth wife during the iddat of the fourth, or (4) with a slave girl upon a free woman, though it states at the end of the discussion : “The result is that there is no difference between a fasid and a batil marriage in a matter other than that of iddat.” Tahtavi takes the list of the so-called fasid marriages from Rudd-ul-Muhtar, or, mediately, from Mohit. Thus, Fatawae Alamgiri, Tahtawi and Baillie can be traced up to Mohit.

First, I will discuss Fatawae Alamgiri. Since it is available, and Baillie has based his whole argu­ments upon one passage found in Alamgiri,I have reproduced, in the Text portion, the original of almost the whole of the chapter dealing with M oharramat i.e. women who are prohibited in marriage. I have also given my own translation of the passage. I have left out only those sentences of the passage which refer exclusively to marriages with slave girls.

On a careful reading of the passage, certain points emerge prominently :

(1) At the end of every statement, the authority is cited from which the passage is taken. Thus, in the whole of the passage reproduced here, 34 authorities are quoted. Out of them, Mohit is quoted 11 times, Mabsut (by the same author) is quoted once, Qazi Khan is quoted 6 times, Siraj- ul-Wahaj 4 times, Fath-ul-Qadir twice, Muzmerat, Hedaya and 8 other authorities are quoted once

each. It is surprising th a t Q uran is not quoted even once, n o r any w ork o f the M ofasserin. If we read th e passages (reproduced in the Text portion) from Im am R azi, Ibn-e-A rabi or H edaya, we are struck by th e fact th a t for every statem ent they make, they rely upon som e passage o f the Holy Q uran. T h is fac t clearly brings out the calibre and e rud i­tio n o f the com pilers o f the Fataw ae Alamgiri. T he ir vision was lim ited, and their scholarship seems to be o f a stereotyped kind. It was based u p o n a second-hand knowledge o f the subject deriv­ed from the then recently com piled com m entaries.

(2) Even as it is, we find th a t the same w ord “ M o h arram at” is used in Fataw ae Alam giri to denote all the wom en included in all the 9 classes into w hich they are divided. T he fou rth class is th a t o f “ M oharram at-B il-Jam a.” It includes two classes o f w om en : ( 1) Exceeding the permissible num ber offour, and, on the au thority o f M ohit itself, it is stated th a t it is no t lawful for a m an to m arry m ore than four free wom en or slave girls. The w ord used is

( La Y a h illo ). In discussing the case o f successively m arrying five women, it says tha t the first four m arriages will be lawful ( JV ) and the fifth will be unlawful ( j ^ ). Baillie and A m ir Ali seem to have over-looked the significance o f these w ords when they were dealing with this case o f unlaw ful conjunction. In describing the case o f m arriages w ith two sisters, four sentences are used. In the first, it says (The twosisters should no t be collected together in m arriage).

T hen there is an en u n c ia tio n o f th e general ru le th a t no tw o w om en shou ld be co llected to g e th e r in m arriage w ho are re la ted to each o th e r , in such a way th a t, if one o f them w ere a m ale an d th e o th e r a fem ale, they could no t have m arried each o ther. H ere, the phrase used, is ( lJ 1 j j f - i V (It is n o t law ­ful to collect them in m arriage). T he w ord is a term o f a rt, and has the m ean ing o f “ allow ed by Shara. ’ is its ^ o r negative. T h eth ird and the fo u rth sentences describe th e effect o f such a m arriage, if it does, in fact, tak e p lace. T he th ird one m entions th a t, if tw o sisters a re sim ul­taneously m arried by one N ikah , the m an shou ld be separated from bo th . It does n o t use th e w ord fasid or batil in this connection . Lastly , com es the a ll-im portan t sentence upon w hich Baillie and A m ir Ali have built up their theories. I t lays dow n th a t if the tw o sisters are m arried by tw o successive con trac ts o f m arriage, the second m a rri­age will be defective ^ ‘j**- ^ anc* th en proceeds on to say th a t the w om an will get her dow er, will have to observe id d a t and the issues will be legitim ate.

N ow a careful and com parative study o f the sentence will show th a t, here, M ohit is n o t using the w ord fasid as opposed to Batil. I t is m erely describing th a t in such a case, only the subsequent m arriage will be caught by the unlaw fulness, b u t the first m arriage will rem ain valid. T he use o f the w ord fasid seems to have been m ade in its o rig inal

sense when it was considered as a synonym of Batil. This interpretation gathers force because :—

(a) Shams Uddin Sarkhasi (the author of Mohit) himself says in his other book M absut that “ the second marriage is ‘fasid,’ because it results in the collection of two sisters in marriage, and, there­fore, invalidity (Butlan , the noun of theadjective, Batil) will attach to such a marriage” (see Text 33). Thus it is quite clear that he uses the word “ Fasid” in the sense of Batil, in the phrases Xwli (the phrase used in M absut) and

( ^ e phrase used in Mohit).

(b) Fatawae Alamgiri itself cites Qazi K han6 times. It also cites Hedaya. In other words, its compilers recognise the authority of those works. Now, Qazi K han says, at two places, in the passage quoted, (Text 35) that if the two sisters are married successively, the first marriage is lawful or Sahih j ^ and the second marriage is Batil ( )

(c) Like Sarkhasi, Fatawae Alamgiri does not throw any light upon this point whether it had, in view, a man who married his wife’s sister with or without knowledge of her relationship to his existing wife.

Next, I shall say a few words about M ohit. This famous book was written by Shams U ddin Sarkhasi, a famous jurist who died in 1096 A. D. This book has not been available in India. Even the learned judges who decided the case reported in I.L.R- 23 Cal. 130 (Aiz-un-nisa K hatoon Vs. K arim -un-

nisa Khatoon) mentioned that it was not available in India. All that we know about the view express­ed in this book, on this point, is from the passage which has been incorporated in the Fatawae Alam­giri. We can not say in what context, Sarkhasi wrote this passage. Various surmises can be made, in the absence of the original work i.e. (1) He might have given the views of some other author in order to contradict him, and the compilers of Fatawae Alamgiri contented themselves with merely quoting this passage, and not noticing and incor­porating Sarkhasi’s contradiction, or (2) Some important and qualifying words or phrases might have been left out, in the Fatawae Alamgiri, with the result that the whole sense of the passage was changed. Be that as it may, it is certain that we can not absolutely rely upon the correct and full reproduction of the view laid down in Mohit. Such errors often occur when one is citing from another book. We have just seen that Tahtavi has changed the whole meaning of the sentence he was quoting from Rud-dul-Muhtar, by dropping a few words of the original sentence found in Rudd-ul-Muhtar.

Though Mohit is not available as mentioned above, the other and the greater work of the same author, Shams Uddin Sarkhasi, known as Mabsut, is available. In Mabsut, this important point is discussed by Sarkhasi, in the following words :

“If both the sisters are married by one “Nikah,” the marriages of both the sisters are batil i.e. void,

because there will be no reason for the validity of the m arriage of either sister. This is so, because m arriage produces ownership, and ownership can not be acquired over either sister by such a marriage, because the N ikah with neither sister is anterior to tha t with the other sister, and it is not possible that both the marriages may be valid, because the Quran makes it H aram to collect two sisters in marriage. The result is that, in such a case, it is necessary to hold both of them batil” (The actual words are j ^ k J I ). And if one sister is married first, and the other sister is married later on, in such a case, the marriage with the first sister is valid, because it does not result in the collection of two sisters in marriage, and the marriage with the other sister is “ fasid,” because it will result in collecting two sisters in marriage, and therefore invalidity will attach to such a marriage with the second sister, (T h e actual words, in this case, are ^

and a separation should be effected between them i.e. between the man and the second sister.” (See Text 33).

Then the author proceeds on to say that the husband will be liable to pay the lesser o f the stipulated or the customary dower to the second sister who will have to observe iddat.

The following observations may be made on this passage.

(1) Sarkhasi uses the phrase (invalidity necessarily attaches to the m arriage) to both kinds of marriages i.e. when both the sisters

are married by one Nikah, and when the second sister is subsequently married. In other words, he places these two cases on the same basis. Even Baillie and Amir Ali hold that, in the first case, the marriage will be batil, and not merely fasid i.e. void and not irregular. Sarkhasi clearly says that a subsequent marriage with the wife’s sister is of the same character.

It may be said that he expressly says that the second marriage is fasid, and, therefore, it is his real opinion. The answer is that a good writer in English will avoid using the same word twice, in quick succession, and will, if possible, use two diffe­rent words which have the same meaning, at the two places. Similarly, Sarkhasi has avoided using the word batil twice in this passage, in Mabsut, in quick succession. The operative word is Butlan which he uses in connection with both the cases. Again, the use of both the words, Fasid and Batil in the same sentence, may thus be explained that he intended to use both these words as synonyms in connection with marriage, as is expressly stated in some of the texts mentioned above.

Again, it may be pointed out that as Sarkhasi says, in this very passage, that the second sister will be entitled to some dower, and will have to observe iddat, (and these are the effects of a fasid marriage), therefore, such a marriage should be held to be fasid, and not batil. The answer is that it will be so, even when both the sisters are married by one Nikah. They will together be entitled to one such dower,

and will have to observe iddat. Again, these very consequences follow when one co-habits with a strange woman under a shubh ( a wife’s sister or any other woman, even though she might be a married woman), and, therefore, the liability to pay dower, on the part of the man, and the duty of the woman to observe iddat, prove nothing. U nfortu­nately, Sarkhasi does not say whether he had in view the case of a man who entered into such a marriage knowing it to be unlawful, or, the case of one who did not know that the woman was his wife’s sister.

On a careful reading of all the original texts— from Quran down to Alamgiri—it appears to me, that M ohit had in view the case of a bona-fide m arri­age, which had been contracted in ignorance of the fact creating a bar to such a marriage, when he was describing the consequences of such a marriage, i.e. separation of the parties, liability of the m an to pay dower, duty of the woman to observe iddat and legitimacy of the issues of such a marriage. N ot only in the case of a marriage with a wife’s sister, but even with a woman who is prohibited on grounds of consanguinity, fosterage or affinity, these very consequences will follow a nikah con­tracted in ignorance of the fact which creates the bar. This interpretation will reconcile all the texts, will rationalise all the rules laid down in these texts, and will bring them in conformity with reason and sound principles on which the Muslim Jurisprude­nce is based. To think otherwise will, in my opi­

nion, be throwing a slur upon a person of the posi­tion, repute, sanctity and scholarship of Shams Uddin Sarkhasi. He should not be imputed with the intention of expressing a view which was basically opposed to the most clear and unambiguous Quranic injunctions as understood, explained and enunciated by all earlier authorities of universal repute, like Imam Razi.

Now, there remains Amir Ali. As regards him, there are several reasons why his opinion on this point, cannot be given the weight and the importance which his status, erudition and juristic ability generally demand.

These reasons are as follows :

(1) Though he gives a translation of the rele­vant verse of the Quran, on p. 323, he does not con­sider, at all, what is the correct meaning and inter­pretation of the verse, nor does he consider theopinions of Mofassarins regarding this verse.As a judge and a lawyer, he must be knowingthat in interpreting an Act, the Act itself is the first thing to be taken into consideration, and the opinions of its commentators can be resortedto, later on. No canons of interpretation permit the practice of entirely ignoring the Act, and merely going by the opinions mentioned in commentaries etc.

(2) He seems to have been unduly impressed by the authority of the Fatawae Alamgiri. On p. 378, he speaks about it with reverence, almost

am ounting to awe. His reasons for giving it this supreme importance, may be summarised as follows:

(a) “ Tt was compiled under the authority of Emperor Aurangzeb.” It will be more corrcct (o say that it was compiled under his patronage. He himself never had any hand in its compilation, as Justinian and Napolean had theirs, in the com pila­tions of their Codes, nor did he promulgate it under his authority as a Code for Hanafi Musalmans.

(b) “Other works were compiled by legists and jurisconsults who wrote merely as private individuals w ithout official im primateur which this work poss­esses.” But Fatawae Alamgiri is merely a collec­tion of the opinions o f these very legists and juris­consults whom he is thus running down. Besides this, the body of Ulema who compiled this book, did the work independently of Aurangzeb, and the compilation may be said to be the work o f a body of men whose authority and prestige, in the field of law, is such that, today, we do not even know their very names.

(c) “That the rules and principles embodied therein were enforced in the Muslim Courts of Justice, under the Moghal Rule.” But the Moghal rule itself was collapsing, and actually collapsed, shortly after. Chaos and anarchy reigned supreme, in India, after the death of Aurangzeb, so that, there was no opportunity to test the accuracy of the views expressed in the Fatawae Alamgiri.

(3) Amir Ali’s treatm ent o f the law of marriage, and especially his anxiety to distinguish between

perm anently and tem porarily prohibited m arriages is not a t par w ith the rest o f his most learned work. In his discussion o f batil and fasid m arriages, he has m ade con trad ic to ry statem ents, propounded untenable rules o f law and m ade statem ents w hich canno t be supported either by au thority or by logic. Since it am ounts alm ost to a sacrilege to say so abou t a ju ris t o f his tow ering personality and status, 1 will try to substantiate my assertion by concrete exam ples :

(1) On p. 324, he says “ W hen a valid m arriage has been contracted with a w om an, her m other and o ther fem ale ancestors, and her daughter become forbidden to the m an, even though, there may not have been consum m ation .”

But this statem ent is in direct conflict with the Q uranic verse 4.4.1. which says :—

“ Prohibited to you are your wives’ m others, your step-daughters under your guardianship, born of your wives, to w hom ye have gone in (i.e. with whom you have co-habited) N o prohib ition if you have not gone in (i.e. co-habited).” All A rabic texts are unanim ous on this point. This is w hat H edayah says (See Text 66)

“ It is no t lawful for a m an to m arry his wife’s m other w hether he m ay have consum m ated his m arriage w ith her daughter or not, the Alm ighty having prohib ited such a connection in general term s, w ithout any regard to tha t circum stance; neither is it lawful for a m an to m arry the daughter o f his wife; but this only, provided he has already

consummated his marriage with the latter, because the sacred text restricts the illegality of this union to that circumstance, wherefore, a marriage with the daughter of the wife is illegal where carnal connec­tion has taken place with the latter.” Hamilton Vol. 1. p. 77. Both Qazi Khan and Alamgiri hold the same view as Hedaya

(2) On p. 325, at the top, he says :— “ According to shafe’i, an adulterous connection does not give rise to the prohibition of affinity. In this, they differ from both the Hanafis and the Shias,” but at the bottom of the same page he says “There is no difference among the Sunnis and the Shias regard­ing the prohibitions arising from affinity.” This last statement is not absolutely correct, as Shafe'is are also Sunnis, and they differ from Shias. Again, having already noticed the different view of the Shafe’is, his unqualified statement, at the bottom , is not very happy.

(3) On p. 326, he says: A marriage contractedwithin the prohibited degrees is null and void.” Now, all those women who can not be married owing to some positive interdiction which has been placed by law upon a marriage with them are, in common parlance, called prohibited women. Then, his subsequent treatm ent of the subject shows that only the marriages contracted with those women who are related to the m an by consanguinity, affinity and fosterage are null and void.

(4) On p. 326 he says “A man may not marry two sisters...by the same contract...But if such a marriage is contracted, in fact, it is invalid (fasid), but not void (batil).” On p. 401, he says “If two sisters have been married to one man by one and the same contract, both marriages are void, and the women are not entitled to any dower, if the separa­tion has taken place before consummation.”

(5) On p. 326, he says that a man may not marry two sisters, one after another, whilst the previous marriage is subsisting. But if such a marriage is contracted, in fact, it is invalid (fasid), and not void (batil); but on p. 401, he lays down that if a man charges two vakils to marry him to a woman, and they, acting independently of each other, marry him to two sisters, the contract prior in date will be held valid, whilst the other will be voided.

This exposition of law produces startling legal consequences. Tf X himself marries two sisters, A and B, successively, the marriage with B (which was contracted later), will be merely fasid ; but, if the two marriages are contracted through two vakils, who were acting independently of each other, the subsequent marriage with B will be held void. In the former case, X must be presumed to know the facts and will, thus, have ail animus delicti in marrying B; whereas, the two vakils were, ex hypothesi, acting quite innocently and had no animus delicti. The result is that where the corpus delicti combines with the animus delicti, the marriage with B is merely fasid and is allowed to

produce certain very im portant legal consequences; on the other hand, where the corpus delicti is the result of an innocent mistake, and there is not even a shadow of any animus delicti, the marriage with B is put on a lower level and is held to be totally batil. Such a result cannot be justified on any sound juristic principles.

The matter may also be looked at from another point of view. According to the views of Amir Ali, it is the mode of the formations of the con­tract which will determine its nature and its legal incidents—whether it has been contracted personally by X, or through vakils. The all- important fundamental question of the capacity or the incapacity of the parties to the contract is entirely ignored ; whereas, a marriage contract is, in general, like any other contract. In the general law of co n trac t:—

(A) Capacity of Parties is always a fundam ental question which goes to the very root of every con­tract. If any kind of incapacity attaches to either party to the contract, the resulting agreement is merely a nudum pactum, and is not held to be an enforceable contract.

(B) It is a cardinal rule of the Law of Agency that whatever is done through an agent, is held to have been done by the principal himself. The principal is saddled with the consequences of the acts of his agent, if ( 1) it is one which the law permits to be done through an agent, and (2) if the agent has been rightly appointed. So that,

there is no difference, in law, between an act done by a principal himself, and one which has been done by his duly appointed agent.

(6) On p. 326, he says that in the case of Rela­tive prohibitions, if the bar is subsequently removed, “ the marriage will become lawful, ab initio, without the necessity of a fresh contract. This in fact is the test of an invalid marriage,” i.e, according to his view, in the case of every marriage which is invalid and not void, the removal of the cause which creates the bar, will ex post facto make the marriage lawful, ab initio, without the necessity of a fresh Nikah. His further discussion shows that he considers invalid all those marriages regarding which the prohibition is temporary and not absolute. But it will be seen that in every such case, a fresh Nikah is necessary, after the removal of the bar. He himself says, on p. 402, that “if one marries a woman when she is keeping iddat, she being a divorcee of another or another’s widow, such a marriage is invalid, and the man can, after the expiry of the iddat, enter into a contract of marriage with her, de novo.” Even Alamgiri says that a fresh Nikah is necessary after the removal of the bar of prohibition.

(7) On p. 327, he says that a man can not marry “ his slave girl whilst he has a lawful wife.” This sentence has three inaccuracies :

(i) A free man can never marry his own slave girl. If one purchases his wife, his marriage with her becomes dissolved. (See Hamilton s Hedaya

Vol. 1 p. 84) (ii) It is quite lawful for a male slave to marry another’s slave girl (with her m aster’s permission), after his marriage with a free woman, so that the bondswoman and the free woman can both be co-wives of the same male slave, (iii) A lawful wife may be a slave girl (of another man); so that, if one is lawfully married to slave girl who is his lawful wife, he can marry another slave girl.

(8) On p. 389, he says that “ a union with a married woman, if contracted with the knowledge of that fact, is an adulterous connection” (holding such a marriage to be batil); but, on p .329, he puts the prohibition against a marriage with a m ankuha under the designation of “Prohibitive Incapacity.” The other case which he places under the “ Prohi­bitive Incapacity” is the marriage of a M oslem ah with a non-muslim. These two cases, both falling under the same prohibitive incapacity, are necessarily to be governed by the same rules. As regards the marriage of a Moslemah with a Non-M uslim , he says, on p. 400, that according to M ohit and, apparently, Buhr and Tahtavi, such marriages are only invalid ( fasid ), whereas, according to M ajma- ul-Fatawa, D ur-rul-M ukhtar and R udd-ul-M uhtar, they are absolutely nugatory. Then he discusses the two points of view, and clearly indicates his preference for the former view, holding such m arri­ages as fasid. It is in keeping with his general view that all such marriages are fasid as are prohibited temporarily. Therefore, by necessary implication, it

may be safely concluded that, according to him, a marriage with a married woman is also fasid and not batil. Of course, he nowhere expressly says so. But his reasoning and his classification of prohibited women lead us to this conclusion. This is clearly against the express interdiction placed by Quran upon marriages with married women. I?L.JI ^ _ Besides this, it goes against the “ Usui” on which marriage is based. Furthermore, in a Muslim marriage, the man has the ownershipof the woman by right of Nikah, and it is notpossible for two persons to hold in possession one and the same woman, at one and the same time.

(9) On page 326, he says that the marriage witha fifth wife of a man who has already got four wives is “only invalid, for the man may divorce one of the four wives, or any one of them may die, when the fifth connection would become valid.” I will refer to the relevant authorities at the appro­priate palce. Here I may merely say that if this view is accepted, the limit of four will practically vanish, because a man may then marry 1000 wives ; 996 of them are bound to die, and that will,ultimately, reduce the number to four.

(10) Again, he says, on pp. 327-9, that a marri­age with a Mushrik or a Mushrika is merely fasid and not batil. This view of his, most clearly violates the express injunction of the Quran which interdicts such marriages, until the Mushrik or the Mushrika adopts Islam Cr*J* ~ To say

that the marriage today will not be void, because some time, in future, it may become legal, is throwing to the wind all the accepted canons of interpretation.

To err is human. If one finds that the celebrat­ed author of the monumental works like “ The Spirit of Islam,” “The History of the Saracens” and “ Mohammadan Law” has, at some u n guarded moment, expressed a view which can not be justi- ed, one would be failing in one’s duty to the Muslim Jurisprudence, if one does not point it out. This will, in no way, detract from the greatness of the man who has played such a vital role in the awakening of the Indian M u slim s . His untiring efforts to propagate the doctrine of the Wakf-Alal-Aulaud—an im portant rule of the Muslim Law, as administered in British India— will, for all times to come, keep his co-religionists under an eternal debt of gratitude to him, and keep his memory fresh in the minds of th e generations to come. It is in this spirit that I have undertaken to examine afresh the law relating to Batil and Fasid Marriages, so that the errors which have crept into our law, mainly due to the prestige of Amir Ali, may be rectified.

Law of M arriage is intimately and indissolubly connected with the Law of Legitimacy. B iolo- gical paternity should not be confused or mixed up with legal paternity. The first is the outcome of a natural instinct, a passion, a physical necessity which arises at a particular stage of life; whereas, the

latter is the effect of the rules laid down by the law-giver for regulating the mode of satisfying that instinct and that passion. Thus, they are entirely distinct from each other. The former is the result of a physical act, deliberately done by the man. The woman might have had no volition in the commission of the act. She might be insane, asleep or drunk. The carnal act with her, in such cases, will not be the result of her free volition. But the man’s volition is indispensable, because, without it, there can not be any penetration which, in law, amounts to co-habitation. But legal parentage is imposed upon a man by law. There is no necessary connection between these two kinds of parentages. One may exist without the other. The biological parentage of a child of fornication lies in the paramour of the woman with whom she has had sexual intercourse. But legal parentage will not lie in him. This is the instance of the case where there is a biological parentage, and the legal parentage does not exist. Now, let us see the opposite case where legal parentage will exist, but biological parentage need not e.g.

(1) If a man marries a woman, and divorces her at the very moment of the nikah, and she gives birth to a child exactly six months after the date of the nikah (neither more nor less than six months), the child will belong to the husbannd. (Hedaya (Vol. II p. 303, Qazi Khan p. 171 Baillie p. 393).

(2) If a widow gives birth to a child within two years of the death of hei husband, the child

will belong to her late husband (Hedaya Vol. II p. 356).

(3) If a man gives his wife a revocable divorce, and she gives birth to two twin children, the first, just within, and the other, just beyond, two years from the date of the divorce, both the children will be deemed to belong to her previous husband, and a rij’at will be presumed. (Qazi Khan p. 173.)

Therefore, in all these cases, it will be seen, that the legal parentage will lie in the husband of the validly married woman, even though he might not be the real father of the child. In the case of a valid marriage, the paternity of the child, if born after 6 months from the date of the nikah, will be established in the father, whether he claims it or not. In fact, he can not deny it, except by li’an, and if li’an, for some reason, is not possible, he can not deny it at all.

The principle is that, in the case of a validly married woman, if she gives birth to a child 6 months or more after the date of the N ikah (and not from the date of co-habitation), the child will be deemed to belong to the husband, even though he might not have had any co-habitation with his wife.

Law of M arriage is of vital im portance and it will always remain so. The sooner it is clarified the better. The present uncertainty of law has been responsible for conflicting decisions in courts of law, in matters affecting the social

structure of the Muslim socicty. Consequently, the importance of the clarification of these laws can not be over-estimated.

Syed Amir Ali, having convinced himself of a fundamental division of the prohibitions into two classes—Permanent and Temporary—has put down his views in his customary forceful manner. The net result of his views—if adopted in toto, and if carried to their logical conclusion—will be to deprive the Muslims of their family life and conjugal happiness. In substance, his views amount to this, that every marriage which can become lawful, at any future time, on the happening of any future uncertain event, will be merely fasid and not batil, if it has been contracted, in fact, in anticipation of the happening of that uncertain event, however improbable the occurrence of that event might be. In his view, marriages prohibited only on the three grounds of consanguinity, fosterage and affi­nity are batil. All others are fasid, producing important legal effects, including the legitimacy of the child of such a marriage.

The main cause of the complications that arise in this part of the Law of Marriage, has been that the question of the legality or illegality of a marriage has been considered and discussed by a large num­ber of authorities, side by side, with questions of hudd for zina, dower, iddat, maintennce, and legiti­macy of the children. Undoubtedly, all these subjects are indissolubly inter-connected, but the funda­mental fact that every one of these subjects has a

separate entity, has been ignored by most of the authorities.

Amir Ali has, like so many others, proceeded to examine the nature of a marriage from the point of view of the liability of the parties to hudd. He argues:—(1) If the parties are not liable to hudd, the junction does not amount to zina. (2) If it is not zina, the union, if prohibited, will, nevertheless, give rise to certain legal results, and must be called a fasid marriage. (3) If it is a fasid marriage, it must produce the legal results flowing from it—the legitimacy of the children, the liability of the husband to pay dower, and the obligation of the woman to observe iddat. (See p. 379 et sq). But his argument is based upon a very spacious fallacy, because :—

(1) There may be no hudd, even though the act is admittedly zina. e.g. marriages which fall under the category of Shubh-Fil-Failor when a free sane adult woman induces a minor or a lunatic to co-habit with her (Qazi Khan).

(2) Again, there is no connection between the liability to hudd and the legality or otherwise of the marriage, for a very im portant reason which has been over-looked by all. The Q uran, as Amir Ali rightly points out, on p. 378 of Vol. IF, in the first place, interdicts all relations which are not based on some right. In the second place, it prohibits unions with certain classes of women. “ It merely says Ijt) . g u t it does not define Zina. Furthermore, it describes, in great detail, the classes

of women with whom marriage is prohibited. These two injunctions are the basic and fundamental laws promulgated by the law-giver. As I have said above, the Quran does not contain any definition of zina, or, of a zani. Therefore, either of the two deductions can, in my opinion, be safely drawn:—

(a) The Quran assumes that any violation of the rules of prohibition laid down by it, will amount to zina. It is the most obvious conclusion that can legitimately be drawn from the mode of the treatment of the subject in the Quran. It prescribes a punishment for zina, it enumerates the women with whom marriages can not be contracted. It will logically follow that if a person knowingly contracts a marriage with a woman falling within any of these classes of prohibited women, he commits zina.

(b) Alternatively, it may be argued like this.Zina has been defined by the jurists later, from, what they call, the generalisation of the rules of Quran, ( o l^ l f j-* ^ ) . It is they who have laid down what should be deemed zina, and what should not be so deemed. Whenever an act falls within the definition of zina, as given by them, the accused is to be awarded the punishment. But it must be borne in mind that this (defining zina) is the work of persons other than the law-giver him­self. They can, if they so like, refuse to consider an act as zina, as in cases of J , andunknowingly marrying a Mahram; or, they may treat an act as zina and, still, refuse to award hudd, as in cases of ti . All this is

within their competency. But what they cannot do, is to change any of the Quranic rules. It will be absolutely opposed to all canons of law that any person, possessing a limited authority, delegated to him by the supreme law-giver, may, by the exercise of his delegated authority, abrogate any of the laws or rules laid down by the supreme law-giver him­self, and, specially, if he has laid them down clearly, and in an unambiguous language. Therefore, no action of the jurists in the m atter of awarding, or refusing to award, hudd can, in the slightest degree, change the letter or the spirit of any of the injunc­tions clearly laid down by God in the Q uran; and no arguments can validly be advanced to the effect that because no hudd is awarded in the case of a union between certain persons, such a union does not fall within the category of “ prohibited unions” ; or that such unions are capable of producing any of the results of a valid marriage. According t0 the Shia Jurists, there is no difference between a batil and a fasid marriage. Even, according to a large number of Sunni authorities, there is no diffe­rence between a batil and a fasid m arriage in a matter other than that of iddat (See Rudd-ul- M uhtar Vol. II. p. 574).

Amir Ali mentions another test to discover the legitimacy of the child and, indirectly, to determ ine the validity or invalidity of the marriage w hich requires a careful scrutiny. On p. 389, he says “ Where the connection is adulterous (zina), no iddat is obligatory on the woman. The true test, there­

fore, for judging whether the issues of a particular connection are legitimate or otherwise is to dis­cover whether the mother, after separation, (not on death), has to observe the prescribed probation or not.”

The context shows that he meant to argue like this :

(1) Since zina does not make iddat obligatory, therefore, if a woman, on separation, has to observe iddat, her union with the man cannot be zina.

(2) Since the act is not zina, the children must the legitimate.

(3) Since the children are legitimate, hermarriage can not be batil.

Therefore, he regards the factum of the obliga­tion to observe iddat as a test to determine the nature of the marriage. But it is not a sound test. It is a case of reversing the cause into effect and vice versa. The true test should be to find out whether the union is prohibited by Quran, i f it is so prohibited, it should be declared batil. There are other cases of union with women about which there is no specific prohibition in the Quran, butwhich are prohibited either on account of someHadis, like (there is no Nikah withoutwitnesses), or, on general principles which have been deduced by jurists from the Quran.

Now, we can sum up the net result of this dis­cussion. A marriage with two sisters can be con­tracted, either by one contract, or by separate

contracts. These two cases must be considered separately.1. Simultaneous marriages.

If a man marries two sisters by one contract, both the marriages are void, and he must be separat­ed from both of them. If such a separation takes place before co-habitation, the man may marry either of them immediately; if it takes place after co-habitation, the man cannot marry either of them, until the expiry of their periods of iddat. If the iddat of one has expired, but not that of the other, the man may marry the one whose iddat has not expired, but not her sister, unless and until, the iddat of the other sister also expires. If the consuma- tion has taken place with one sister only, and not with the other, he may marry the one with whom he has co-habited, but not the other, until the expiry of her sister’s iddat : but when that has expired, he may marry whichever of them he chooses.

As regards their dower, if the separation takes place before consummation, the sisters are not entitled to anything, but if it takes place after con­summation, they will get the lesser of the two amounts i.e. the proper or the stipulated dower.II. Separate Marriages.

If a man marries two sisters one after the other, the marriage contracted first, in point o f time, is valid, according to all, except Amir Ali who seems the hold that, in such a case, the m arriage with both sisters will be fasid i.e. the first marriage which v/as valid becomes, ex post facto, fasid, as soon as, the

wife’s sister is married by her husband. As regards the sister who was married later, according to those who call it batil, no consequences will flow from it, and the woman will not be entitled to any dower. According to others who call it merely fasid, the man must separate from her, and if he does not, it is the duty of the Qazi to separate him from her to stop sinfulness. As regards her dower, she will get nothing, if there was no co-habitation ; but, if co­habitation had taken place, she will be entitled to her proper or stipulated dower whichever is less. If a child is born to her, he will be legitimate, and she must observe iddat. The marri­age of the sister who was married first, will not be affected, except, so far as, the husband is bound to refrain from having sexual intercourse with her during the period of her sister’s iddat.

Amir Ali says, on p 402, that if two sisters have been married by two separate contracts, and the man has had sexual co-habitation only with the sister married last, her marriage will be held valid, (on grounds of morality), though it was posterior in time, and the other one will be avoided. Amir Ali cites no authority for this proposition.

But Qazi Khan is of opinion that, in such a case, the first marriage is sahih, and the second one is batil; and if the man co-habits with the sister who was married last, he cannot co-habit with the sister who was married first, until the iddat of the other sister has expired. Therefore, the clear implication is that the first marriage is not, in any way, affected

by a co-habitation with the second sister. She is to be separated from her husband, her marriage remains batil, and does not become sahih by co­habitation, as Amir Ali says, on grounds ol public morality.

Amir Ali seems to have got this idea irom Rud- dul-M uhtar, Vol. II. p. 1000. Rudd-ul-M uhtar is there discussing the case of a girl marrying two persons. It says that, in such a case, the marriage contracted first will be valid, and the latter one will be void. It then proceeds on to say that, if, how­ever, the second marriage alone be consum mated, it will be considered valid, on grounds of public morality. Amir Ali might have applied this statement of law to the reverse set of facts, i.e. in the case of two successive marriages with two sisters. But the analogy is not perfect. In the case of a woman, it may be said that notions of public morality may be involved in her case, and she may be left with the second husband, because the first husband might refuse to take her back, as his wife. In the case of a man that delicacy does not exist. But in my opinion, Rudd-ul-M uhtar is it­self wrong. Once a valid marriage has come into existence, no subsequent act of the woman can undo the marriage. She will remain the wife of her first husband until he divorces her. Her second nikah is absolutely nugatory. It is, in the words of Hedaya, just like a nikah between a man and a man. If she co-habited with the second husband, and the man knew this fact (that she was

already married) she will be liable to Rajm, and will be put to death, and no question of public morality can arise, because the woman will no longer be alive. If, on the other hand, it was contracted by the second husband, without knowing that she was married, her first nikah will subsist, though her first husband will not be entitled to co-habit with her, until she completes her period of iddat. This will be a case of shubh which has already been discussed. The ancient jurists have specifically mentioned such an eventuality, and have discussed the law that will govern such a case.

If two sisters are married by two separatecontracts, and it is not known which of them wascontracted first, the husband is to be asked toexplain; if he does so, the priority will be determined according to his explanation; but, if he fails to ex­plain, he must be separated from both. In this case, if the husband explains, the sister who was married first will be entitled to her full dower, and the other sister’s position, in respect of dower, will be just like that of a sister who is married subsequently. If, on the other hand, the husband can not explain, then, if there has been co-habitation, each sister will be entitled to her full dower j blit, if there was no co-habitation, then each sister will be entitled to one fourth of her dower, if their dowers were fixed; if they were not specified in the contract, a single present is due between them. Baillie p. 23. Other authorities are also of the same opinion.

But Amir Ali says on p. 401 “ If they were m arri­ed by separate contracts, and it is not known who was married first, each would be entitled to half the dower, if the separation took place before the the consummation ; but if the separation took place after consummation, then both sisters will be entitled to their respective specified or customary dowers, whichever -is less.” Amir Ali does not cite any authority for this proposition, and his views are in direct conflict with the views of Baillie and all earlier authorities.

If a person charges two vakils to m arry him to a woman, and they, acting independently of each other, marry him to two sisters, the contract entered into first, will be valid, and the other one will be voided without the intervention of the Qazi, or any divorce from the supposed husband; but, if the priority of either marriage cannot be determined, then both marriages are to be voided.

If a man divorces his wife and, during the periodof her iddat, marries her sister, such a m arriage isconsidered by the Hanafi school as similar to thatwith two sisters, and, consequently, void (or fasid).

ut t is view is not accepted by Imam shafei.ave a rea y reproduced the arguments of Abu

amfa and Shafei, in the words of Im an Razi.n Arabi discusses the point from another point

of view. An extract from him has also been given earlier.

The argum ents o f Ibn Arabi can be s u m m a r is e d as follows :—

(1) God has prohibited the joining together of two sisters in marriage. If a man deliberately does so, lie will be doing the forbidden act.

(2) Marriage is the deliberate act of a man in which he exercises his own volition and is, conse­quently, answerable for his act.

(3) Iddat has been imposed upon a divorced woman by God. Her former husband has no say in the matter. If the woman is to observe iddat, it is in pursuance of a command given to her by God.

(4) If the man marries her sister during her iddat, the conjunction, if any, between the two sisters, is the act of God and not the result of his own volition and, consequently, he can not be made responsible for such a conjunction which has been brought about by vis major—God.

(5) Since the man has no hand in such a con­junction and he has no say in the matter of the iddat, there can be no reason for the imposition of any prohibition upon him.

These arguments of Tbn Arabi can be supple­mented by one more argument. In respect of marriages and rules relating thereto, Quran has been unusually particular and specific, e.g, it has also mentioned exceptions to the rules, and has made provisions for all possible alternative cases. (See Quranic verses regarding dower and marri­ages with Mushrikin.) Even when it prohibited marriages with married women, (-L-JI ^

it did not stop there, but immediately proceeded on to declare L j ^ I , j L i s t as it proceededon to qualify the general order of ilP 1 ^ ^by . Therefore, it may be argued thatif God wanted to prohibit the marriage ol a sister during the period of the iddat of the other sister, He would have made it clear by the inclusion of a few appropriate words after the words ^

As Shafei says, a difference is to be made between a revocable and an irrevocable divorce. In the case of a revocable divorce, the marriage is not dissolved until the expiry of the period of iddat. The husband can, at any time, resume conjugal relations with his wife, even against her will. Baillie p. 285, Hamilton Vol. I p. 289.

Syed Muzaffar Ali Vs. Qamr-un-nisa Bibi Sutherland’s W.R. Sup. Vol. p. 32.

Therefore, in the case of a reversible divorce, the woman retains the character of a wife, in the eyes of law, until the expiry of her iddat. If her husband marries her sister within this period, he may concei­vably be charged with bringing about an unlawful conjunction. Alternatively, by marrying her sister during her iddat, he may be regarded as having incapacitated himself from taking her back, and because of the solicitude of the Muslim Law for conjugal happiness, marital amity and family concord, the man may not be allowed to do so. But when the Talak is bain, or the woman has been thrice divorced, so that a co-habitation with such a woman will am ount to a positive whoredom,

may expose the parlies to hudd ( if the man does not declare that he conceived the woman to be lawful), and the nasab of the child will not be established in the man, even if he claims it, it will be stretching the rule to an unreasonable extent to hold the man guilty of unlawful conjuction if he marries her sister during her iddat.

One more argument may be advanced.The Quran completes the enumeration of pro­

hibited women in verse 4.4.2. It is the last verse of the series. After completing this enumeration, the Quran grants a free permission to marry every other woman. This is how the Quran proceeds :—“Also (prohibited are) women already married except those whom your right hand possessess.” (4.4.2.)

Here ends the list of prohibited women. Then Quran says :

“Thus hath God ordained (prohibitions) against you.” The meaning is that these are the prohi­bitions imposed upon man by God, i.e. whatever classes of women God wanted to prohibit, He has done so. Then comes a very important portion of the same verse. (Text 5).

“Except for these, all others are lawful, provided ye seek (them in marriage) with gifts from your property,—desiring chastity, not lust.” Here God says that, with the exceptions of the women enu­merated above, all others are lawful to you to marry. One may seek any and every other woman in marri­age. As regards iddat, the Quran gives detailed

instructions and lays down rules of prohibitions in extenso. If God wanted to prohibit the marriage with a woman whose sister the man has divorced and who is in her iddat, He would have said so. “ ln- clusio unius, exlusio alterius" is a recognised canon of law. The Quran impliedly permits such a marriage by (1) not mentioning it while laying down prohibi­tion in respect of women in iddat and (2) by giving a general permission to marry all other women who have not been specifically prohibited.

Tt may also be said that no man can take awaya right which has been granted by God. The rightto marry a woman is a positive right, and onecannot be deprived of a positive right, ’except bythe very same authority which grants that positiveright. Here this positive right has been grantedby God, and it cannot be taken away by any lesser authority.

CHAPTER II.

UNLAWFUL CONJUNCTION

Unlawful conjunction arises when two women, standing in certain degrees of relationship to each other, are married together by a person. The marriage with two sisters also falls under the cate­gory of an unlawful conjunction. The law regard­ing these two classes of women is the same i.e., whatever view a person holds regarding the vali­dity, or otherwise, of a marriage with two sisters, the same view he holds regarding simultaneous marriages with two women standing to each other in this degree of relationship. Therefore, wha­tever has been stated above, in Ch. I, regarding a marrage with two sisters will, Pari Passu> aPP ^ these marriages also. I shall merely state w those relationships are which will make un aw ’ conjunction between two woman who stan o e other in that degree of relationship. s a so quite briefly because there is no i ere opinion, among the jurists, on this pom .

Qazi Khan p. 169 (Text 35).

“Another class ‘andwomen who are uterine leldUons ui

are forbidden to each other. (Mooharram means that if one were a man and the other a woman, then they would be forbidden to marry each other).”

“ It is not lawful to a man to marry a woman, whose father’s sister is already his wife, or whose mother’s sister is already his wife, or whose sister’s daughter is already his wife, or whose brother’s daughter is already his wife. And if he m arries both of them at once ( i.e. by one contract ), their marriages will not be valid” i.e. neither m arriage will be valid.

“They (i.e. the lawyers) have said that two women who are so related to each other that if o n e of them were a male, and the other a female, a marriage between them would be unfawful, cannot be validly brought together (in marriage) e x c e p t in one case, viz, when a man brings together, in marriage, a woman and the daughter of her p rev io u s husband (by another wife), this is valid (that is, it is lawful for a man to marry together a woman and her foimer husband s daughter by another wife)? because the prohibition between these Iwo women is not mutual, Suppose the husband’s daughter to be a man, then this man could not marry the woman who is his father’s wife, i.e. his step mother, and he is her husband’s son: but if the woman, i.e. the step-mother, were to be considered a man, then the daughter would not be unlawful to him, because she would be a stranger to him, for by s u p p o s in gthe woman to be a man, there would be no husband in the case.”

“ Tt is unlawful for a man to make a conjunction between {i.e. to marry together) a woman and her father’s sister, or mother’s sister, or brother’s daugh­ter, or sister's daughter, because the Prophet has said “ Do not marry a woman over her father’s sister or mother’s sister or brother’s daughter or sister's daughter.”

“ And do not make a conjunction between (i.e. join them together in marriage) two such women that, if one of them were a male, it would not have been lawful for him to marry the other. And there is no harm in making a conjunction between (i.e. in marrying together) a woman and the daughter of her first husband, because there exists no relation­ship between them, either by consanguinity or by fosterage.’ (Note. Hamilton’s translation of the above sentences on p. 80 of Vol. I is merely a paraphrase. 1 have, therefore given my own literal translation).

CHAPTER III

MUSHRIKAT

Quran 2.27.5. (Text 6).‘ Do not marry unbelieving women (idolatresses),

until they believe : a slave woman who believes is better than an unbelieving woman, even though she allure you. Nor marry (your girls) to unbeli­evers, until they believe : a man slave who believes is better than an unbeliever, even though he allure you. Unbelievers do (but) beckon you to the fire. But God beckons, by His Grace, to the Garden (of bliss)/’

Verse *s s° le direct injunction, found ]n * e Q ™ - re8arding marriages with polytheists. In Tafsir Kabir, there is found a long argum ent regarding the validity or otherwise of a marriage W a Christian and a Jewess. There are two views upon this question. But the accepted view is that such a marriage will be valid, if ,he Muslim is a male. If a Muslim woman marries such a per-

pagi M r™ 8® Wil‘ bC Sahih' <See HamiU°nAt this stage, r am concerned only with the

question whether such a marriage> if i( h> in fact,

(fo s id ) * V° ' d < b a til)’ ° r m e l'e ly i r r e S u ,a r

Two phrases of (his verse are to be carefully considered in this connection.

The first is the word V (Do not con­tract a nikah with i.e. do not marry). The pro­hibition is direct and unambiguous. The impera­tive mood and the active voice is used. The prohi­bition is regarding the very act of contracting a nikah. What is prohibited is the nikah itself, and not the natural result of such an act i.e. co­habitation. If co-habitation was meant to be interdicted, and not the nikah itself, the injunction would have been framed in another way, as is done in the very next verse.

Quran 2.28.1. (Text 16).

“They ask thee concerning women’s courses, s^y: they are a hurt and a pollution: so keep away from women in their courses, and do not approach them, until they are clean. But when they have purified themselves, ye may approach them in any manner, time or place ordained by God.”

Thus we find, one after the other, two verses, one prohibiting the very contract of nikah, and the other prohibiting merely co-habitation which, on the removal o f the cause o f that prohibition, would, ipso facto, by the very factum o f the removal of that cause, become lawful. It is an accepted canon o f construction that the law-giver should be deemed to act deliberately, and if he uses two different modes o f expression in dealing with two cognate subjects, he should be presumed to have

meant to draw a distinction between the two. Here, there are two verses, one after the other. Both con­tain prohibitions which are meant to prevent sexual intercourse between a man and a woman. In the one case, the very act of nikah is prohibited; while, in t e other, all that is prohibited is co-habitation.

ne may contract a nikah with a woman who is in her courses. Such a nikah will be completely valid. It is not prohibited. But if, after contract­ing nikah, he desires to consummate it, the pro­hibition comes in.

Again, in both cases, the prohibition is not perpetual. It is to come to an end, on the happen-

nnLni an eVen! ‘ ^ at event *s the renunciation ofcase anrT , i ° ° nVersion to ' * m , in the one case, and the cessation of menses, in the other.

use"of TheS ^ ^ ^ ^ • Thefied nroh KV ^ indicates that the unquali-tw l r r lmpoSed hy the tw° verses, on the until th S i? a°tS sPec'*'ec* 'n them, is to continue

happening of the conditions mentioned ■mmed.atdy after 6 ^ , . ^ . Therefore,

tinn ‘ necessa,'y and logical implica-whifhSH at J tlle cond,tion is 'lot fulfilled, the aciof thp T -S ^°r ,'ts validuy. uP°n the fulfilmentlawful C°m ltl0n’ Wi" n0t’ in its ,urn’ be valid andbwu ■ ■ r what is the act wwch wi" beconditio" 6 tW° °aSeS *Presum'ng the specified tina he n ^ T - T They are- contrac"tion in the other. * * ^ a"d SeXUal c° -hahita'

The rule can not be gainsaid that if the condi­tion is not fulfilled, the act which depends upon such fulfilment for its validity, will also not be valid. No author has seriously controverted the rule that one cannot re-marry one’s thrice divorced wife, until she has married another person, and has been divorced by him, or a woman who has already a husband can not be married, until she is divorced. In both these cases, the condition must be fulfilled, and then the act of Nikah will be valid. One can not marry a married woman on the off chance of her getting a divorce from her first husband. Tf one does so, the nikah itself is considered null and void, and no legal consequences of any kind flow from such a nikah. The woman will be guilty of bigamy, the children will be illegitimate, and what is more, the parties will be liable to hudd, no dower will be payable to the woman, nor will she be under any obligation to observe iddat. The reason is that the condition precedent on which the validity of the nikah depends has not been fulfilled.

There is nothing wrong or unnatural in the act itself, like the commission of an unnatural act with a beast. In fact, polyandry is still the rule among certain communities, and the law under which those comminicties live, recognises it. It is an admitted principle of modern jurisprudence that if an act depends upon the fulfilment of a condition prece­dent, the fulfilment of this condition precedent, as its very name signifies, must precede the commis­sion of the act. The act can not be validly com­

mitted on the expectation of the condition being fulfilled later. Therefore, if the nikah has been prohibited with a polytheist until the plytheist's conversion, the said conversion, according to uni­versally accepted Rules of Interpretation, must precede the nikah. If there is no conversion, the condition is not fulfilled; if the condition is not fulfilled, the nikah which depends upon the conver­sion, will not, in its turn, be lawful or valid. To hold the nikah illegal, and yet allow the .conseque­nces of a valid nikah to flow from it, is tantamount, in my opinion, to disregarding the very basis of the nikah. One can not build a house, and leave the the foundation to be laid later. The foundation must be laid first, and then the super-structure can be raised upon it. Here the foundation is the conversion, and the subsequent structure to be raised upon it, is the nikah.

Again, the Quran prohibits co-habitation with one s wife during her menses. Cessation of menses is also a condition precedent to the legality of a co-habitation with her. The some word sS*" is used heie also. Nobody says that one may co-habit with one s wife during her menses because, in this case, the fulfilment of the condition— the cessation of menses is not only not hypothetical, like the coversion of a polytheist to Islam, but is an obsolute certainly, The word must be interpreted in the same way, in both the verses.

I have so much laboured this point in deference to the very high authority of Amir Ali. His views,

as I shall mention presently, are based upon ultra juristic conceptions. Before, 1 come to him, I shall mention the views of a few other authorities on this point.

Hedaya says : (Text 68).“ It is unlawful to marry majoosi women acord-

ing to the orders of the Prophet, and it is unlawful to marry a pagan woman, according to the words of the Quran ‘Marry not a woman of the polytheists until she embrace the faith.”

Qazi Khan, on p. 169, says (Text 35).“A polytheist woman is not lawful to a Muslim

and...A majoosiah (a woman who is a fire-worship­per) is not lawful to a Muslim.”

Fatawae Alamgire (Text 100).“ It is not lawful for a Muslim to marry a fire-

worshipper or an idolatress. It is not lawful for a Muslima to marry a Mushrik, or, even a Kitabee.”

Macnaghten merely says, on p. 58, “Christians, Jews, and persons of other religions believing in one God, may be espoused by Moohammadans.” He says nothing about polytheists, unless their exclusion from the list may be taken to mean (and it is the obvious inference) that they can not be so married.

Ibn Abu Zaid’s views are given by Russell and Suhrawardy, in their book “ First Step in Muslim Jurisprudence.” He says :

“God has forbidden intercourse with unbeliev­ing women; but marriage with a scriptural woman is permitted.” (page 15)

(See Text no. 101).“ Where one of the spouses apostises, the marriage

is annulled by repudiation; or, as other authorities maintain, without repudiation” (See Text no 102).

“ When two unbelieving spouses are converted to Islam, their marriage is maintained. If one only embraces Islam, their marriage is annulled, without repudiation.” (page 17)

(See Text no. 103).Thus it will be seen that, according to Ibn Abu

Zaid, even a co-habitation with a Mushrika is for­bidden by God. The object of marriage is to legalise co-habitation. Since the very act of co­habitation with a Mushrika is forbidden ( e.g. one cannot co-habit with one’s female slave who is a polytheist), a marriage with her becomes totally meaningless. Again, if the marriage of a Mushrik with a Mushrika is ipso facto dissolved, if one of them adopts Islam, so that no marriage can subsist between a Mushrika and a Muslim, a priori, an absolute prohibition must attach to the marriage of a Muslim with a Mushrika, or vice versa.

Wilson (p. 115).

“ A Muhammadan woman can not, as such, contract a valid marriage with a man who does not profess that religion. ’

“There can be no valid marriage, according to Muhammadan Law, with a woman who is not either a Muhammadan or a Kitabia i.e. a Jewess, or a Christian, believing in scriptures, the sacredness of

which is acknowledged by Muhammadans.” On p. 117, Wilson says that “such a marriage will not be void from the beginning (Batil), but merely invalid (Fasid.) It is the duty of the court to separate the parties, and the conjugal relation maybe terminated by a simple declaration on either side; but, if the marriage has been consummated, the woman is en­titled to dower (proper or specified, whichever is less), and the issue will be legitimate.”

Abdul Rahman says, in Art 134, p. 82: “The following marriages are absolutely void...(2) The marriage with an idolatress.”

Baillie says :“ It is not lawful to marry majoosiah (or fire-

worshippers), nor idolatresses.” (p. 40). “ He can­not have carnal intercourse with them by right of property.” (p. 41).

In his chapter VIII, which contains his own views on Fasid and Batil marriages, he says, on p. 153, as follows : “ On referring to the third chapter, (whichis a paraphrase of the actual text of the Fatawae Alamgiri dealing with “ Prohibited women” who are there divided into 9 classes, the seventh of which deals with the case of polytheists), it will be seen that of the 9 classes of women who are unlawful or prohi­bited to a man, the 6th, 7th and 9th classes have been disposed of by showing, either from direct authority or by parity of reason, that they are not permanently prohibited.” 1 can not understand what he is driving at. Nobody denies the fact that, under certain circumstances, the prohibition to

marry the women who are placed in those classes can be removed. Among such women come mush- rikas and mushriks also, because if, but only if, they adopt Islam, they can be married.

Earlier on the same page he writes dogmatically as follows :

“ With regard to persons who are prohibited from intermarrying by reason of a difference of religion: though it is unlawful for a Mussulman to have a connection with a Majoosee woman, the connection is not unlawful in itself, for the objec­tion to it may be removed, as already observed, by the change of religion, and the connection is, therefore, not zina. The same reasoning is appli­cable to his connection with any other idolatress, and to the marriage of a Mooslimah to a man of a religion different from her own; for the objection in both cases is equally removable by a change of religion.”

On P 41, Baillie himself gives a passage from Fatawae Alamgiri which forbids co-habitation with a mushrika female slave. In his Ch. VIII, he entirely ignores this passage and does not say how he can reconcile his own personal views with those mentioned in the Alamgiri. If even a co-habitation with a mushrika is forbidden, how can there be any marriage with her ? Again, if co-habitation with her is unlawful, how can the result of such a co-habitation—an issue—be lawful.

His argument may, in my opinion, be very succes­sfully answered by saying that a marriage between a

Muslim and a Majoosi or other idolatress is absolutely prohibited, and such a prohibition is as “ perpetual and irremoveable” as the one in the case of a mother or a daughter. So long as they retain the character of a mother, a daughter, a sister, a mushrika, a married woman, a wife’s sister, and so on, they are under a perpetual interdiction. A mother, a dau­ghter, a sister and others related to a man by nasab. riza or musaherat can not change that character, because they have no control over nature which puts them under that category and, consequently, a marriage with them is permanently and absolutely prohibited. Similarly, marriages with a mushrika, a wife’s sister, a married woman and a woman in her iddat are absolutely and permanently prohibited.

If a mushrika adopts Islam, if one divorces the wife whose sister is in question, if a woman com­pletes her iddat, if a married woman is divorced by her husband, can they, in those cases, be desig­nated as a mushrika, a wife’s sister, a mo’attada (one who is in iddat), or a married woman ? Will they fall under these catagories ? What Quran prohibits is a marriage with a woman who is either a mushrika, or a wife’s sister, a or ma’ottada or a mankuha, just as it prohibits a marriage with a mother, a daughter, a sister etc. It does not prohibit marriages with women who were, sometimes in the past, either a mushrika or a wife’s sister or a mo’attada or a mankuha. The

Quran takes into consideration facts which exist27

at the time of the act, and not those which had existed previously.

A man is not answerable for acts of nature. He can not undo any act of nature. But he has been endowed with a free volition. He is answerable for his own acts. In this particular case, it is nature that may intervene, in different ways, in different cases, or it may not interevene at all. In the case of mother etc, nature herself, by virtue of the physical fact o f consanguinity, creates an insuperable bar which it dose not, under any cir­cumstances, whatsoever, remove. The result is that that fact remains unalterable. In the case of a mo’attada, nature does intervene, and it is nature and nature alone that will shape the future course of events. The sun must rise and set the number of times necessary to complete the period of iddat. Man can neither accelerate nor retard the progress of time, however anxious he might be to do so. Nature will take its own course, and in due time, will change the character o f a woman from one of a m o’attada to that o f a non-moattada. The woman herself is a helpless passive spectator of this change in her personality. Just as nature created her, and she had no volition in the matter of her creation, similarly, nature takes her out from one category and places her under another. She has no say in this matter too. But when this change has been brought about by nature, she will have a new status, a new personality and a new legal capacity, in the world. She will no

longer be a mo’attada. In other cases, nature does not intervene at all. Everything is left to the voli­tion of human actors. One may, if one likes, change one’s religion, or divorce one’s wife. In common parlance, we say that so and so is a Muslim, a Jew, and so on. We do not say that he is an ex- Muslim or an ex-Jew. The question is what is he? not what was he? So that, if as a result of a change in the circumstances, one acquires a new legal personality, he will be treated as a new “ Person.” His previous position or status will not, and can not, be taken into consideration. There­fore, if a mushrika adopts Islam and a Muslim marries her, or if a Muslim divorces his wife and then marries her sister, or if a woman completes the period of her iddat and then re-marries, or if one person divorces his wife and another person marries her, these marriages certainly do not contravene any of the prohibitions (orders which are as per­manent and immutable as the laws of nature) which are contained in the Quran. Now what are those prohibitions? They are :—Do not marry a mush­rika, and no mushrika has been married; or, do not marry a wife’s sister, and no woman answering to that description has been married; or, do not marry a m o’attada, and no such woman has been married; or do not marry a mankuha, and certainly no such woman has been married.

The arguments of Amir Ali and Baillie are based upon the untenable ground, which they uncon­sciously presume, that a person’s legal status or his

personality can not change. But ti is not so. It is liable to, and certainly does, change. And what is more, such a change is quite frequent. A married woman was once a virgin. Then she marries. Her legal status changes. She gets a new personality. A marriage with her was permissible to X when she was a virgin, but it ceased to be so, the moment she married Y. Why ? Because, though physically she remains the same human being, yet, in the eyes of law, she has assumed a new status, attended by new rights, new duties, new capacities and new incapacities. Her past cannot be taken into consideration in determining her present status or capacity. Later on, if she is divorced by her husband, her legal status again undergoes a change. She can not regain her virgi­nity, because she has no control over nature. The laws of nature stop her from doing so. But she will be clothed with new rights and new duties. Before her divorce, her husband was responsible for her maintenance ; now she will have to provide it for herself. Since she is no longer a married woman, therefore, the duties and the incapacities which law attaches to married life—obedience to the husband, acquiescence in his having sexual intercourse with her, inability to call another man to her bed, in a lawful manner etc—are removed. She is no longer bound to obey her previous husband, she can drive him out of her bed, and so on. W hy? Because she is a new woman in the eyes of law. Her past is entirely obliterated, and she starts afresh with a

new legal personality. Once she was a baby, then she became a girl, then a maiden, then a wife, and lastly a femme sole. At every stage, she has a new set of rights and obligations, capacities and incapa­cities. If at the age of four had shot down a man with a revolver, nobody would have touched her. If she does the same act after the age of fifteen, she will be hanged. Why ? Because she assumes a new legal personality with the change of circumstances. Similarly, while she was married to Y, if she had married X, she would have gone to jail for bigamy; but, if she does the same after her divorce, nobody will touch her. Again, this is the result of a change in her status.

So that, it is a misnomer to say that a marriage with a mushrika, a manhuka, a mo’attada or a wife’s sister is merely temporarily prohibited. Such a marriage is permanently prohibited. If the laws of nature, or the laws of the country, bring about circumstances which invest the woman with a new personality, she is no longer the same woman in the eyes of law. Physically, she is the same, but in the eyes of law, under the old body, there will be deemed to exist a new personality which will bear no relation to her old personality. Since a new personality has been created, or, has come into existence, the new legal relations which will be created with reference to her, will be relations which are created with reference to a personality which, in fact, did not exist earlier.

Md. Yusuf Vol. II p. 115.

“ Amongst the women who are prohibited are infidel women (Kafira) with a particular kind of infidelism (Koofr). An idolatress is not lawful to a Muslim...A majoosi woman is not lawful to a Muslim.”

Md. Yusuf also mentions the case of a marriage between a muslima and a kafir, both being unaware of the unlawfulness of the union. He says that according to som: authorities, such a marriage will merely be invalid, and the issue will be legitimate. Here, again, crops up the difficult doctrine of shubh. A special complexity arises in this case from the fact which is generally found in cases of shubh, that it is the misconception of the man and not of the wo nan, that counts. If it were a reverse case of a Muslim marrying a mush­rika under shubh, the matter would have been quite clear. The marriage would have been fasid, and the man could have claimed the paternity of the child. But here, there is a case of a Muslima m arry­ing a kafir. The kafir is not subject to the rules of Muslim Law. The paternity of the child, with all its legal consequences, will be in the man, if his own personal law permits it. It will not be governed by rules of the Muslim Law. Secondly the question arises: Ignorance of what? Does it mean ignorance of fact, or, ignorance of law. Clearly ignorance of fact does not fit in here, because how can the man be ignorant of his own religion ? Therefore, the author must have in contemplation, ignorance of Law. The question is how far the maxim,

“ Ignorance of Law is no excuse” applies to the Muslim Law of marriage. If this interpretation of the doctrine of shubh is accepted in our courts, as part of our Law of Marriage, no prohibition will be too sacrosanct to be thrown to the winds. Besides this, when the maxim “ Ignorantia juris non excusat” has become an integral part of our law, and this maxim is inherently sound, there is no reason why it should be considered to be inapplicable to this important branch of law. I may mention here, the case of Narantakath Avullah v Parakhal Mammu A.l.R. 1923 Mad. 171 (Oldfield and Kri- shnan JJ). In this case, a Muslim woman was married to H who became Ahmadia. She was told that H had become an apostate and that, con­sequently, her marriage with him was dissolved. She, thereupon, re-married. H prosecuted her for bigamy. Her case was argued by Sir Zafar Ullah Khan. The court held that Ahmadias were a sect of Muslims, that there was no apostacy and, con­sequently, she was guilty of bigamy. The learned judges observed that the question of her good faith and mens rea were immaterial, as Sect 579 I.P.C. excused a person who made a mistake of fact, and not one of law. They further observed that good faith could only be considered in mitigation of sentence, but could be no answer to the charge of bigamy. “ Good faith” can only exist if one is ignorant o f law or fact. Just as a mistake of fact, and not o f law, is excuseable, under S.579. I.P.C, similarly, it should be so, under the Muslim law of marriage also.

MullaOn p. 236, Art. 264, he says : “ The following

marriages are irregular : (d) A marriage prohi­bited by reason of a difference of religion. The reason why it is irregular, and not void, Is that the objection may be removed by the woman becoming a Muslim, a Christian or a Jew, or, the husband becoming a Muslim.'5

On p. 234, Art. 259, he says : “ A Mahome-dan male may contract a valid marriage, not only with a Mahomedan woman, but also with a Kitabia, i.e. with a jewess or a Christian, but not with an idolatress or a fire worshipper. A marriage, however, with an idolatress or a fire worshipper, is not void, but merely irregular.”

A Mohamedan woman cannot contract a valid marriage except with a Mohamedan. She cannot contract a valid marriage even with a Kitabee, i.e. a Christian or a Jew. A marriage, however, with a non-Muslim, whether he is a Kitabi, i.e. a Chris­tian oi a Jew, or a non-Kitabi, i.e. an idolator or a fire worshipper, is irregular and not void.”

I have deliberately left, for obvious reasons, Amir Ali’s view to be considered in the last. He discusses this case on pp. 327-9 of Vol. II.

On page 327-8 he says “The Sunnis recognise, as legal and valid, a marriage contracted between a Muslim, on the one side, and a Hebrew or a Chri­stian woman, on the other. They hold, however, that a marriage between a Mussalman and a Magian

or a Hindoo woman is invalid. Both schools (i.e. Sunni and Shia) prohibit a Muslim male marry­ing an idolatress female, or, one who worships the stars, or any kind of fetish whatsoever.”

“These prohibitions are relative in their nature and in their effect. They do not imply the absolute nullity of the marriage e.g. when a Mahommedan marries a Hindu woman, the marriage is only inva­lid, and does not affect the legitimacy of the offspr­ing, as the polytheistic woman may, at any time, adopt Islam which would, at once, remove the bar and validate the marriage.”

Tt may pertinently be asked “ the bar of what?” If the bar is to the marriage, clearly the bar must be removed before the marriage takes place.

Then he refers to the case of Abdur Razak v Aga Mohammad Jaffer Bindamin, 21.1.A. 56, (which will be discussed later on), and says that the govern­ing idea of the case that, if a Muslim wants to marry a mushrika, she must first adopt Islam, is erroneous. Then Amir Ali proceeds on to say that if there is an actual marriage, subsequent adoption of the Islamic faith would make the union valid, and no fresh ceremony would be needed. If this last view is accepted as correct, the following difficulties arise:

(1) Before the woman’s conversion, what exactly will be the position of the wife? Will she be considered to be a lawful wife of the husband or not. If she is a lawful wife of the husband, why deprive her of her right of inheritance ?

28

as is undoubtedly the case, and even Baillie says so, on p.694. Again, why interfere with the amount of her dower and give her the lesser o f the two dowers—stipulated or customary?

(ii) Again, Amir Ali (along with those who hold similar view) says that a subsequent conversion will make the union valid. Tn other words, a marriage may be entered into, in praesenti, and its validity may depend upon some event which may or may not happen in future. What will be the legal position if this future event does not happen? II the woman does not adopt Islam and dies, will it mean that the marriage, all through the period of its continuation, remained invalid.

(iii) According to the opinion expressed by Amir Ali and others of his view, the only material differences between a Sahih and a Fasid marriage are (1) that the woman will have no right of inheritance to the estate of her husband, and that(2) she will be entitled only to the lesser o f the two dowers—stipulated or customary. In the case of a marriage with a mushrika, even this second diffe­rence will disappear, because m ahar is a distinc­tive feature of the Muslim Law, and this institution is not to be found in any other religion. The result is that, in the case of a mushrika, there can be no mahar misil, or customary dower, so tha t the sti­pulated dower will remain intact and can not be reduced with reference to something which does not exist,

The only logical conclusion that can be drawn is that, according to Amir Ali, if a Muslim marries a mushrika, the Qazi should separate them. If he does not come to know of it, or knowing it, he fails to perform his duty of separating them, their union will subsist, together with all its legal consequences and effects, just like a valid marriage; except that the woman will have no right to get a share in the inheritance of her husband, if she sur­vives him.

On page 396, Amir Ali says : “ It is only withregard to the effect of a marriage between a Non- Muslim and a Muslim woman that there is a difference between the legists. ‘In the Muhit it is stated,’ says the Rudd-ul-Muhtar, ‘that when a Zimmee (a non-Muslim subject) marries a Muslemah, separation shall be effected between them, because the marriage that takes place is Fasid.’ There is no mention of nasab in this passage which has been quoted from the Muhit, but the commentator draws the right inference, and deals with it in this way. ‘From this, it would be inferred that they shall not be liable to hudd, and that nasab and iddat would be established from it (the union) if the parties have co-habited (Buhr).” This apparent inference is drawn from the fact that Mohit uses the word ‘Fasid’, and does not say anything about nasab or other consequences of a fasid marriage (as are understood now). It is an inference drawn, not by the author of Rudd-ul-Muhtar, as Amir Ali says, but by

the author of Buhr. This quotation from Buhr has been incorporated by the author of Rudd-ul- Muhtar in his commentary, immediately after giving the first quotation from Mohit. In fact, in Rudd-ul-Muhtar, we find quotations after quotations, from various authors put together in such a way as to make a complete narration. In Rudd-ul-Muhtar, Vol. II. p. 574, (Text 63), we find this clear passage which is reproduced by Amir Ali himself on p. 396, immediately after, and in continuation of, the passage given above. “ I say that the commentator (i.e. the author of Dur-rul- Mukhtar) will presently state towards the end ot the section dealing with the establishment of nasab (parentage), on the authority of the Majma- ul-Fatawa, that if a kafir (non-Muslim) marries a moslemah, and the woman bears a child to him, the nasab shall not be established from him, and iddat shall not be obligatory on her, because the marriage is batil (void), and this, (namely, what is laid down in the Dur-rul-Muhktar), is clear (Sarih), and therefore, is to be preferred to an inference (the inference he has drawn from Mohit). This then thou should understand.”

Amir Ali quotes another passage from Rudd- ul-Muhtar, on p. 396-7. “ In the Majma-ul-Fatawa, it is stated that if a kafir marries a Moslemah, and she gives birth to a child, its nasab will no t. be established, nor will iddat become incumbent on her, for the marriage is batil—his (the word ‘his’ refers to the author of Dur-rul-Mukhtar) saying

that the marriage is batil means this, that co­habitation in such a case is zina, and therefore nasab will not be established, contrary to the case of a fasid (marriage), for in the case ol a fasid marriage, the copula is subject to Shubh ; so nasab will be established ; and therefore, it is that an invalid marriage creates the firash (i.e. the bed) whereas it is not so in the case of a batil (connection).”

On p. 400, he says that, “according to Mohit, and apparently Buhr and Tahtawi, the union is treated as an invalid marriage, for the man may, at any time, abandon his own religion and accept the Faith of Islam, and thus remove the bar to matrimony with a Muslim woman. Accoiding to Majma-ul-Fatawa, Dur-rul-Mukhtar and Rudd- ul-Muhtar such a marriage is absolutely nugatory, and if there is co-habitation, it is tantamount to zina. Naturally in the opinion of these jurists, the children will naturally be illegitimate.

Then Amir Ali proceeds on to discuss the rulefrom ex tra - ju r is t ic p o in t of view, an d says th a t the

enforcement of this rule in British India may lead to consequences of an anomalous chaiacter.

Amir Ali has given the word “fasid”, as used in Mohit, its technical meaning which was assigned to it later on. Buhr, merely means that the use o t e word ‘fasid’ might be interpreted in this sense. It does not mean that he favours the putting of this interpretation upon the words of Mohit. Tahtawi

is merely annotating Rudd-ul-Muhtar which is definitely of the contrary view.

It may be pointed out that Amir Ali gives a translation of the relevant Quranic verse, on p. 327 : “ Marry not a woman of the polytheists(mushrikin) until she embraces Islam.” But he takes no further notice of it, at all, and totally ignores it.

Amir Ali and Baillie have been implicitly follow­ed by later writers. They (and especially Mulla) are being cited in courts. Decisions are being given according to their views with the result that grave consequences flow from them.

I will mention a few of these cases which are important from some point of view.(1) Abul Razak v Jafar 21.1.A.56.

In this case a Buddhist woman of Burma claimed to .be the legally wedded wife of a Muslim from Calcutta, and the question of the legitimacy of her child by her Muslim husband was raised.

The Privy Council did not allow the question to be argued whether Buddhists come under the same category as Christians and Jews, for the purpose of their marriages with Muslims, because this question was not necessary for the decision of the case which was disposed off on the ground that the marriage itself was not proved.

The Privy Council observed that where, according to the Muslim Law, unbelief or difference of creed is a bar to a marriage with a true believer, it is enough

if the alien in religion embraces the Muslim faith. Profession, with or without conversion, (probably by conversion, their Lordships meant the holding of some formal ceremony), is necessary and suffi­cient to remove the disability.

It is this part of the judgement which Amir Ali has criticised. But the Privy Council clearly adopts, and gives effect to, the rule of the Muslim Law that a Mushrika should first adopt the Muslim faith, and then, she can marry a Muslim, and vice versa. This ruling was binding upon all the British Indian Courts and, in fact, correctly appreciates and enunciates the rule of the Muslim Law.

The two cases of “ Government of Bombay v Ganga,” I.L.R. 4 Bom. 330, (Pinhey and Melvill JJ), and “ In the matter of Ram Kumari,” I.L.R. 18 Cal. 264, (Macpherson and Banerjee JJ). the question came up before the Bombay and the Calcutta High Courts, on their Criminal Sides. They were both cases of bigamy. In the Bombay case, the matter came up, in an appeal against an order of acquittal, filed by the Government of Bombay, whereas, the Calcutta case was one of Revision against an order of conviction. In both cases, a Hindu married woman, in the lifetime of her Hindu husband, embraced Tslam, and married a Muslim husband. It was held, in both cases, that her first marriage with the Hindu husband was not dissolved by her conver­sion to Islam, and that, consequently, her marriage with the Muslim husband was one which was

contracted during the lifetime of her first husband, and, as such, she was guilty of bigamy.

In Budansa Rowther v Fatima Bi 22. I. C. 697 (Mad.).

Tn this case, a Hindu married woman adopted Islam and married a Muslim, in the lifetime of her Hindu Husband, and had children by her Muslim husband. On his death, these children brought a suit to recover possession of their share in the inheritance of their father. Tt was held by the High Court that, as her marriage with her Hindu husband was not dissolved by her subsequent con­version to Islam, and as the formalities required by the Muslim Law, in such cases, were not observed, her second marriage with the Muslim husband was null and void, and, therefore, the children were not legitimate and could not inherit to their father.

Mst. Saidan v Sharaf A.I.R. 1937 Lah. 759 (Tek Chand J).

One Mst. Saidan filed a suit for a declaration that, as she had adopted Christianity, her marriage with Sharaf was dissolved. It was held that, on the evidence, her conversion was not proved. His Lordship observed :

“ It is no doubt the law that renunciation of Islam by one of the spouses results, ipso facto, in the dissolution of the marriage, and it is immaterial whether the motive for the renunciation was a genuine conversion, or a mere device to have the marriage dissolved ; but the factum of conversion must be proved, all the same,”

The last case T shall mention is that of Ihsan Hasan Khan v Panna Lai A.I.R. 1928 Pat. 19 (Rose and Kalwant Sahay JJ.).

Here, a Hindu girl married a muslim, without having adopted Islam, and had children by him. It was held that the marriage was merely invalid and not'void, and that the issues of the union were, consequently, legitimate. Reliance was placed, as usual, on Mulla Section 200 and 206 ; Wilson Art 39 and Amir Ah' Vol. 11 p. 388.

This last case will illustrate the dangerous trend of modern decisions which, unless stopped, will make further inroads into the Muslim Law of marriage.

I shall end this chapter by commenting on ano­ther statement which Amir Ali has made on p. 327 of Vol. II. He says that “ the Quran, for political reasons forbade all unions between Muslims and idolators.” It is submitted, with due deference to his high authority, that the prohibition is not based upon any temporal or political considerations. It is really based on spiritual grounds : Islam lays the greatest emphasis on spiritual cleanliness. It is this purity of soul which, as the Soofis and mashaikhs declare, brings together God and man, the creator and the created. The real reason for this prohibition is the realisation of the fact that so close and intimate an association between two individuals as that between a husband and a wife is bound to introduce into the family, i f , either of them is a polytheist,

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concepts and doctrines which are fundamentally opposed to the basic creed of Islam. It is in the human nature to be easily led into error when he comes, face to face, with polytheistic ideas. A mother and a father can, and do, exercise a lasting influence upon the minds of their children. If the pagan doctrines are inculcated in the -youthful minds of children, they will stick into their minds even in their later years. It was with a view to prevent the introduction of pagan customs into Muslim families—customs which might lead the children of Muslims towards “ Shirk,” — that this injunction was issued by God. This view is amply borne out by the reason assigned by Quran for this injunction which is given in the verse itself. (Text 6).

“They (i.e. the pagans), call you towards Fire (Hell), whereas, God calls you towards Heaven and His Forgiveness.”

This question is not a mere dialectic squibbling. If the injunction were based on political grounds, they (i.e. political conditions prevailing in the world) are constantly changing, in a changing world. With a new set of political factors, old rules may also be abrogated, changed, or modified. This seems to be the sub-conscious idea of Amir Ali in writing this passage on pp. 399-400. If, on the other hand, the rule is based upon spiritual con­siderations, it will stand the test o f time and will remain unalterable for all times to come.

CHAPTER IV

Marrying more than Four Wives.

A Muslim is allowed to have four wives at a time, if he is a free man, and two wives, if he is a slave.

The Quran says : (4.1.3.) (Text 12).“ Marry women of your choice, two or three

or four.”Imam Razi, in his Tafsir Kabir, Vol. Ill p. 138,

has discussed the different points of view regarding this verse, one of them being that the mentioning of the numerals 2, 3 and 4 is not to be taken as limiting the number of wives one can marry. After discussing it thoroughly, he arrives at the conclusion that (Text 69), “All jurists are agreed that this verse does not make it lawful to increase the number four” i.e. he is of the opinion that it is not lawful to marry more than four wives.

Hedaya says :—(Text 70).(Hamilton translates it, on p. 88, as follows)

“ It is lawful for a man to marry four wives, whether free or slave: but it is not lawful for him to marry more than four, because God has commanded in the Quran “ Ye may marry whatsoever women are

agreeable to you, two, three, or four” and the numbers being thus expressly mentioned (literally, the specification of numbers), any beyond what is there specified would be unlawful” (literally, the specification of numbers prohibits any addition to it).

Kifaya, a commentary on Hedaya, in explaining the words of Hedaya, says : (Text 71).

“And it is not lawful (or permissible) that one marries more than this (number) on account of the command of God “ Marry such women as are agreeable to you, two, three or four.” The inten­tion is that the number should be one of these, and there is a consensus of opinion on this point.”

Qazi Khan says, on p. 168 :—(Text 35).“Prohibitions which are not permanent are seven.

One of them is that of increasing the number enjoin­ed by law. The number enjoined by law is, for a free man, four, either from among the free women or from among the slave girls. If a free person marries five women, one after the other, the mar­riages of the first four are valid, and the marriage of the fifth is unlawful; if he marries all the five simul­taneously, then all the five marriages-are invalid.” Md. Yusuf points out, on page 110 of Vol. II, that the word fasid is here used to mean batil. -

On p. 360 of his Vol. Ill, Md. Yusuf, basing his opinion upon Dur-rul-Mukhtar as quoted in Rudd-ul-Muhtar, Vol. II. p. 984 says

“The sum and substance of what is stated in the Khazana points to this, that whenever it is un­lawful that a woman should be married to a man, on account of some prohibition, it becomes necessary that the prohibition should be removed (in order that the marriage, when it takes place, should be valid); as for instance, the marriage of the wife’s sister or of four women in addition to the wife.”

Fatawae Alamgiri (Text 100).“ It is not lawful for a muslim to marry together

more than four women. It is so stated in Mohit... If a free Muslim marries five women, one after the other, the first four marriages will be valid, and the fifth one will b.e invalid. If he marries all the five by one Aqd, the marriages with all the women will be unlawful.”

Macnaghten p. 57.“A free man may have four wives.”On p. 561, he cites a case from I.S.D.A. Beng.

Rep. 283 (dated 27.11.1827) to the effect that a Muslim cannot legally have more than four wives, at the same time.

On the same page, he cites another case from I.S.D.A. Beng. Rep. No. 48 (dated 20.8.1801), to the effect that if a Muslim has married four slave girls and then a free woman, the last marriage is good and valid, and is not a fifth marriage, for marriages with slave girls are of no effect in Law. Probably there is an omission of the all-important, operative words “his own;” because it is only with one’s own

slave girls that the marriage is illegal ; on the other hand, a marriage with another’s slave girl is per­fectly valid, provided it has been contracted with her master’s permission. If the marriages, referred to in this case, belonged to the second category i.e. they were contracted with other persons’ slave-girls with the permissions of their respective masters, they would have been perfectly valid, and it would have been wrong to say that “ they are of no effect in law.” If they were valid, the fifth marriage with a free woman would be illegal.

Wilson p. 109 (S. 32).

“ It is lawful for a man to have as many as four wives, at the same time, but not more.”

On p. 110, he says that a violation of this rule, in India, is punishable under S 494 I. P. C. (Bigamy).

Baillie p. 30.

“ It is not lawful for any man to have more than four wives at the same time.” On page 31, he says that “a free man may marry four women whether they be slaves or free. When a free man has married five wives, in succession, the marriage of the first four is lawful, but the marriage of the fifth is unlaw­ful, and if he marry five in one contract, the marriage of the whole is vitiated.” These passages occur in Book I Ch. I ll which deals with “ of women who are unlawful or prohibited, of these there are 9 classes.” Each class, he deals with separately. The fourth class deals with the cases of “women

who cannot be lawfully joined together.” Under this class are put two cases : (1) marriage with more than 4 women, and (2) marriage with two women who stand within prohibited degrees of each other. The whole of this Chapter is a paraphrase of Fata­wae Alamgiri. So that the above passages are the translations of the corresponding passages of the Fatawae Alamgiri, and represent the views of the compilers of that book. Baillie puts down, in the foot note, his own view in these terms “It may be of importance to observe, that in neither case is the marriage said to be batil or void.” He is basing his opinion on the use of the word Fasid ( )in the original, as if, it were used there in the sense in which he takes it, as distinguished from Batil ( ). Then he refers his readers to the “Chap­ter on Invalid Marriages” which contains his own views on Batil and Fasid marriages. He does not specifically mention there the case of a marriage with a fifth wife in the lifetime of four wives, but the general trend of his discussion is to treat it as merely fasid, and not batil.

Abdul Rahman.

Art 19 page 15. “ It is not lawful for a man to marry more than four wives at one time.”

Art 134. p. 82. “The following marriages are absolutely void :...(3) The marriage with a fifth wife, before the fourth has been repudiated and the period o f her iddat has expired.”

Mulla Sect. 255 p. 232.“ A Mahomedan may have as many as four wives

at the same time, but not more. If he marries a fifth wife when he has already four, the marriage is not void, but merely irregular.”

He relies upon Baillie and Amir Ali.In Sec. 264 p. 236, sub-section 3, he defines an

irregular marriage as “ One which is not unlawful in itself, but unlawful for something else, as where the prohibition is temporary or relative, or where the irregularity arises from an accidental circumstance, such as the absence of witnesses. Thus the follow­ing marriages are irregular : (b) a marriage with a fifth wife by a person having four wives. The reason why this marriage is irregular and not void is that the objection may be removed by the man by divorcing one of the four wives.”

Amir Ali.In Vol. II page 326, he is dealing with what he

calls Relative Prohibitions.“In relative prohibitions,” says he, “ if the cause

which creates the bar is removed at any time, the union will become lawful ab initio without the necessity of a fresh contract.” He puts five cases under this category, the second of which is a marri­age by a Muslim who already has got four wives. This he calls “ Illegality springing from completion of number.” “This,” he goes on to say, “is only invalid, for the man may divorce one of the pre­vious four wives, or any one of them may die, when the fifth connection would become valid.”

The other four cases he puts in this category are :—(a) marriages prohibited for unlawful con­junction, (b) a woman marrying her own slave, (c) a person marrying his slave girl “whilst he has a lawful wife” and (d) marrying a poly­theist. In all these cases, he treats the marriage, if actually contracted, as merely fasid. He over­looks that a marriage with one’s own slave is always “ null and void.” In (c) above, the limi­tation “whilst he has a lawful wife” is not to be found in any text, either ancient or modern.

Amir Ali and Mulla are mostly cited in courts of law. A good illustration is furnished by the case reported in 6 P. R. 1908 where it was held that, according to Muslim Law, the marriage with a fifth wife, in presence of four wives, is merely invalid, but not void. Consequently, the children of such a marriage were allowed to inherit to the father. With due deference to the learned judges, it is submitted that the decision is not in accor­dance with the correct rules of the Muslim Law.

The above discussion will show *ha|Lth® of Amir Ali, Mulla, Baillie and Tyebji aredifferent from those of other juris s. ,.have said earlier about their views rmarriages with Mushrikas app ies ere ‘In fact, all other modern authors, ye j\h■ u ‘ »Saxena, etc. have taken their law from Bai he=« Amir Ali. These two (Baillie and mir ) ‘laid down a definite formula and have steadfa t y stuck to it. As against this view, it may bepointed out that if the opinions o ai le an

Amir Ali arc correct, then a Muslim can marry as many as a thousand wives at once because, subsequ­ently, by divorces (possibly), or by deaths (certainly), the number is bound to come down to four. Again Amir Ali says : “This is only invalid, for the man may divorce one of the previous four wives, or any one of them may die, when the fifth connec­tion will become valid.” But what will happen if he neither divorces any of his wives, nor does any one of the five wives die during his lifetime, and the man lives and co-habits with all his wives, begets children by all of them and then he himself dies, leaving behind all the five widows. Amir Ali himself says, on p. 326, that in such cases (of fasid marriages), whilst the children inherit from the father, their mother does not. Now what will happen in the hypothetical case 1 have mentioned above ? Before he married the fifth woman, his marriages with the other four wives were per­fectly legal and valid. On the death of their husband, they would have inherited from their husband, without any impediment whatsoever. But, as soon as the fifth marriage is solemnized, the conditions are changed. In such a case,

(1) According to the first view, the fifth marri­age is void, and so no difficulty can arise :

(2) According to the other view, the fifth marriage is opeiative in a limited manner (a s Baillie and Amir Ali say). In that case, h o w w i l l it affect the position of the previously married four wives ? Apparently and logically, all the five wives stand

on the same footing, becuase if any one of the five wives had died in the lifetime of the husband, then his marriages with the remaining four wives, according to Amir Ali, would have, ipso facto, become valid. Therefore, the natural conclusion is that all the five wives occupy the same legal status in the lifetime of the husband, and no distinction can be made between their legal positions, on any ground, what­soever. Jf they all occupy the same legal position, then, as a necessary corollary, they should all be treated equally in the matter of getting, or of not getting, a share in the inheritance of their husband. Since the wife, in a fasid marriage, is not entitled to get any share in the inheritance of her husband, none of the five widows should inherit. This will mean that the fifth wife’s presence will act as a bar to the right of inheritance previously possessed by the first four wives. If, alternatively, it be said that the first four marriages continue as sahih, and it is only the fifth marriage which is fasid, then the want of consistency and logic, in the argument, becomes still more patent. All the five women are equally the wives of the husband. If any of the first four wives dies or is divorced, then the fifth wife also begins to enjoy a position equal to that of the other co-wives. But, until that eventuality occurs, she is at a dis­advantage. In case of the death of her husband, the other co-widows inherit, but she does not. In other words, at the time of the distribution of the

inheritance, one only of the five co-widows is to be excluded. Now, a Muslim is not allowed to make any distinction between his legal heirs. No parti­cular heir is to be preferred to the others. But here, some co-widows are to be preferred to others. If this objection is answered by pointing out that the distribution of inheritance is made according to the Quranic Law which represents the command of God, then this further fact will have to be admitted that God who commands Muslims to do justice among their wives, is Himself doing injus­tice. He himself is not doing what he commands his creatures to do. Thus there seems to be no way to get out of this tangle except to treat the firstfour marriages as valid, and the fifth one as void.

Therefore, taking all these factors into con­sideration, I think that the views of Baillie and Amir Ali are neither logical nor consistent with notions of Islamic justice. Neither of them have given any cogent reasons why their views should be preferred to those of all other ancient authorities.

CHAPTER V

Marriage without Witnesses.

The question of the legal effect of a marriage contracted in the absence of witnesses is not free from difficulty which has become all the greater, because the Quran contains no clear and definite verse ordaining the necessity of contracting a marriage in the presence of witnesses. It merely says (Text 12). ^ (*£-) (-j U* L I^SCJU

“ Marry such women as are agreeable to you.”

It is absolutely silent on the point of witnesses.

Therefore, there has been a great difference of opinion among jurists 011 this point. The Hanafis and Shafeis consider that the presence of witnesses is essential for the validity of a marriage; the Malikis hold the view that the presence of witnesses may be dispensed with, provided notoriety is given to the marriage.

As I have mentioned above, the relevant Qura­nic verse is silent on the point. Imam Razi, in explaining this verse, says in Tafsir Kabir, Vo. Ill, p. 225. (See Text 72).

“The Prophet has said tM t there is no Nikah without (the presence of) Wali and witnesses.”

“ Marriage between two Mussalmans cannot be contracted, except in the presence of two witnesses, both of whom should be free, sane, adults, Muslim men (or one Muslim man and two Muslim women), adil (i.e. of an established integrity of character) or ghair adil (i.e. without such an established integrity of character), or (even if) both of them have suffered punishment for slander.’ The author, further on, observes :—“ Know that evidence is an essential condition in the matter of (i.e. for the validity of) Nikah, owing to the saying of the Pro­phet “There is no nikah without witnesses,” and this (saying of the Prophet) is an argument against (the opinion of) Malik who considers the condition to be notoriety without witnesses” (i.e. notoriety of nikah will do, the presence of witnesses at the time of Nikah is not indispensably necessary).

Note—Hamilton’s translation of the passage, on p. 74 of Vol. I, is a free translation. Therefore I have given my own literal translation of the passage.

Qazi Khan opens a new Chapter on conditions of Nikah as follows : (Text 74).

“Chapter on the conditions of Nikah.”

“Among the conditions (i.e. regarding the validity of the nikah) is evidence, according to us i.e. Hanafis; but Malik says that the condition is publicity without evidence, (i.e. if the nikah is given publicity, it will be

valid, even if there were no witnesses actually present when the nikah was contracted), so much so, that if a woman is married in the presence of witnesses, and there is a condition to keep the con­tract secret, such a condition is unlawful ; but if, on the other hand, she is married in the absence of witnesses, but there is a condition that the marriage would be publicised, it is lawful/’

Dur-rul-Mukhtar, on p. 284 of Rudd-ul-Muhtar Vol. 11, says :—(Text 75).

“The nikah should be contracted.......in thepresence of adil witnesses.5’

Rudd-ul-Muhtar’s comments on this phrase are as follows :—(Text 76).

“ A marriage should not be held with a woman in the absence of someone from her paternal relations, or in the presence of a sinful paternal relation, or of witnesses who are not adil.” But Hedaya clearly says that witnesses may be two fasiqs or unjust persons.

In other words, Rudd-ul-Muhtar puts in the negative form what Dur-rul-Mukhtar has expressed in the positive. On p. 1000 of Vol. II. Rudd-ul- Muhtar says that the condition that there should be witnesses to a marriage is one in regard to which there is a difference among the Ulamas.

It appears to me that the rule, that there should be either two male or one male and two female witnesses, has been adopted on the analogy of transactions involving future obligations, regarding

which the Quran prescribes a very salutary rule in verses 2.39.1. & 2. (Text 77).

“ O ! Ye who believe ! When ye deal with each other, in transactions involving future obligations in fixed period of time, reduce them to writing...And get two witnesses out of your own men, and if there are not two men, then a man and two women, such as ye choose, for witnesses, so that if one of them errs, the other can remind h e r / ’

Now marriage certainly falls under the category of such transactions, and it is quite possible that the Prophet might have had this verse in his mind, when he said : “There is no Nikah withoutwitnesses.” This saying might merely be an application, in a particular case, of the general order contained in the Quran. Thus, the insistence on the presence of two males, or of one male and two females, at the time of nikah, as its witnesses, may possibly be based upon this Quranic Verse.

Baillie, on p. 5, translates a passage from Fatawae Alamgiri where it is taken from Inaya, Vol. II, p. 1 : “ Shahadut, or the presence ofwitnesses ; which all the learned are agreed is re­quisite to the legality of the marriage. This con­dition is peculiar to marriage, which is not contract­ed without the presence of witnesses, contrary to to the case of other contracts, where their presence is required, not for contracting, but only with a view to manifestation before the judge.” In other words Alamgiri forcefully says that the presence of

witnesses is necessary “ for contracting” i.e. for validating the contract of marriage. It goes on to say that : “ Whereas, in the case of othercontracts, witnesses are required merely with a view to provide proof, before the judge, of the terms of the contract, in case of a dispute between the parties, and not because their presence is an essential condition precedent to the formation of the contract; in the case of a contract of marriage, their presence is essential for the very validity and formation of the contract itself” (i.e. it will not come into existence if there are no witnesses, because the contract itself will become defective for want of one of the requisites essential for its validity). On p. 7, Bailie translates other passages which bear out this view e.g. “ If the witnesses should hear the speech of one of the parties, and not that of the other, or, if one witness hears the speech of one, and the other witness of the other party to the con­tract, the marriage is not lawful.” Baillie, in the foot-note says “The author of the Hedaya says that Shahadat is a condition in a marriage...by reason of the saying of the Prophet ‘There is no marri­age without witnesses,’ but the words ‘an essential condition’ which are found in the English transla­tion, do not appear in the printed original; and not­withstanding the absolute terms of the prophet’s saying, the condition seems to have become one of validity only, and not of constitution. See post Chapter on Invalid Marriages.” In that chapter on p. 155, he says, “ Malik holds such marriages

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(i.e. those contracted without witnesses) lawful, perhaps because he rejected the tradition as not sufficiently authentic.” Here Baillie has made several mistakes.

Firstly, he has entirely misunderstood the phraseology of Hedaya. The original contains the phrase qI&JI J ^j 61 .Here the word ^ means something without which there can be no nikah. Hamilton correctly translates it as “essential condition.”

Secondly, he expressly admits that the p r o p h e t ’s saying is in absolute terms, and still he wants to whittle it down, though, in Muslim Law, Hadis ranks next after Quran, in authority.

Thirdly, the distinction he is trying to make between “ v a l id i ty ” and “constitution” is q u i t e unintelligible. If a marriage is properly c o n s t i tu t e d , it must be valid. Conversely, if it has no validity, it cannot be said to have been properly c o n s t i t u t e d . How can it be both, invalid and properly constituted ?

Lastly, his remark about Malik is the result of his misunderstanding the raison d ’etre of his opinion. He does not consider the saying as unauthentic. He merely puts a different inter­pretation upon it by saying that, if a marriage is given publicity, it will am ount to a virtual observance of the prophet’s command, and that the object he had in view will be gained, so that the nikah will be valid, even though no witnesses

were present at the time of the contract itself. This becomes quite clear fiom a perusal of Bakurat-ul-Sad by Ibn Abu Zaid. This book has been written on Maliki Law and is considered as an authority in the western and north-western parts of Africa where Maliki Law is followed. The author opens a new Section under the heading of “ Constituents of Marriage” )> and under this title, hesays :—“There can be no marriage without : (a>a matrimonial guardian ; (b) a dower ; (c) two irreproachable witnesses. If the witnesses are not called to the contract the consummation should not take place till two witnesses have been called” RussJl and Suhrawardy, p. 3. ( See Text 115). The saying speaks of (witnesses). Tt does not expressly lay down that the should bepresent at the very place where, and at the very time when, the contract was entered into. Thus, the saying is susceptible of a double meaning. Therefore, Malik puts another possible interpreta­tion upon the sayinu. He does not disbelieve the authenticity of the saying, as Baillie imagines. Nor does Imam Malik consider ‘lawful’ a marriage without ‘witnesses.’ Whether the witnesses are called at the time of the aqd or later, the factum of the marriage must be known to witnesses. It is one thing to say that the marriage may be witnessed later on, by being made known to persons after the ijab-o-qobul, and it is quite a different thing to say that it may be kept secret and nobody need know it.

Then Baillie makes a categorical statement (p. 155). “There seems to be no doubt that the marriage in question is only fasid, by general agreement.” In support of this statement, he says that in Inaya (at pp. 74 and 269 of Vol. II) and in Dur-rul-Mukhtar ( at p. 207 ), a marriage without witnesses is cited as an example of fasid marriage, or such as are only invalid.” There­fore, he formulates his general proposition, in categorical terms, merely on the ground that a marriage without witnesses has been cited, as the example of a fasid marriage, once by Dur-rul- Mukhtar and twice by Inayah,

But it is really amazing, BaiVUe, u\ order to support \us own view of the law on the subject, mentions these two instances from Inaya where he has called a marriage without witnesses as fasid, but he takes no notice of the fact that on p. 5 he himself gives a passage from this very Inaya, in which the author of Inaya is expressing his definite views on the subject, in a well- considered language. The passage in question runs thus : “This condition (i.e. Shuhadut or thepresence of witnesses) is peculiar to marriage, which is not contracted without the presence of witnesses, contrary to the case of other contracts, where their presence is required, not for contract­ing, but only with a view to manifestation before the judge.” Inaya is quite clear. According to it, the very contract of marriage does not come into existence if the contract is made in the absence

ot witnesses. At the two places which Baillie refers to, the author of Inaya has used the word fasid in an off-hand manner, and not in the sense in which Baillie uses it. Since it is a fact—which even Amir Ali mentions—that in ancient texts, the words batil and fasid are used indiscriminately, in the same sense, in chapters on marriages, it cannot be asserted that, because Inaya has twice used the word fasid with’ reference to a marriage without witnesses, such a marriage, in the opinion of its author, is fasid. We can not do so and ignore his clear and well-considered opinion on this point, which has been incorporated by Baillie himself in his book.

As regards Dur-rul-Mukhtar, its commentator, the author of Rudd-ul-Muhtar has discussed the passage in question on p. 574 of his Vol. II, and has come to the conclusion that “ there is no difference between a batil and a fasid marriage in any matter other than that of iddat.”

It is amazing to see Baillie brushing aside the Prophet’s command which he himself says is absolute in its terms and the opinions of all other authorities, only because the word fasid has been incidentally used with reference to this kind of marriage, by Inaya, at two places, and by Dur-rul- Mukhtar, at one place, where they are both discussing the subject of dower.

Thus, neither of the authorities on whom Baillie relies (Dur-rul-Mukhtar and Inayah), can be said to support him, and his opinion becomes merely his

own ipsi dixit which is based upon wrong premises from which he has drawn wrong conclusions.

Similarly, Amir Ali, writes (on p. 332 o f vol. 11) as follows : “ It is also necessary under the SunniLaw, that there should be witnesses present to attest the conclusion of the contract. Two witnesses, at least, should be present to testify that the contract was properly entered into, and was in accordance with the conditions laid down above. When the wife is a non-Muslimah, the witnesses may be of the same faith as herself or any other faith. But a marriage contracted without witnesses is not illegal.

The following observations may be made regarding this passage

(1) He has failed to grasp the raison d ’etre of the rule requiring the presence of witnesses. Their presence is required not for the purpose of furnishing proof of the factum of the marriage, as Amir Ah thinks ; but because their presence is required to give validity to the marriage itself. They are as necessa­ry for the validity of the contract as the ijab-o- qobul or the legal competency of the parties. Just as registration is necessary to validate certain con­tracts in Pakistan, under the Registration Act, or writing is necessary, in England, in the case of a contract which falls under the provisions of the Statutes of Fraud, or two witnesses are necessary for the due execution of a will, similarly, the presence of two witnesses is necessary to constitute a valid nikah. This error has led him into the second error which is :

(2) That since the witnesses are required only for the purpose of providing proof of marriage, their absence will merely mean absence of such proof and will not. affect the validity of the nikah which, consequently, will not be invalid, if it is contracted without witnesses.

According to him, the absence of witnesses will only amount to an irregularity, and the nikah will be merely fasid and will produce all the conse­quences of an invalid or fasid marriage.

Mulla, as usual, follows Baillie and Amir Ali. He says, on p. 232, (Sec. 254) : “A marriagecontracted without witnesses, as required by Sec. 252, is irregular and not void.” and he cites Baillie p. 155. In Sec. 252 he says: “ It is essential for the validity of a marriage that there should be (1) a proposal, (2) an acceptance of the proposal, (3) in the presence and hearing of two male or one male and two female witnesses, who must be sane and adult witnesses.” Thus, in Sec. 252, Mulla says that the presence of witnesses is essential for the validity of the marriage, in the same way as offer and acceptance are necessary. In other words, he puts all these three requirements on the same level

I need only point out how these two statements of Mulla, in Sections 252 and 254, can not be reconciled. Either the presence of witnesses should not be deemed to be essential for the “ validity” of the marriage, or, if it is essential, as Mulla admits in Section 252, then the

marriage should be deemed to have no validity’ if it is contracted in the absence o f witnesses, because one of the essential conditions is want­ing, and the fulfilment of all the three conditions is essential for the springing up of the “ validity" of the nikah.

Other modern authors have taken the view that witnesses are essential for the validity o f marriage i.e. if a marriage is held in the absence o f witnesses, such a marriage will not be valid, i.e. it will be invalid or batil.

Macnaghten p. 56.“ It is also a condition, that there should be no

legal incapacity on the part of the woman: that each party should know the agreement of the other; that there should be witnesses to the contract: that the proposal and acceptance should be made at the same time and place.”

Thus, he places the condition regarding the presence of witnesses among the four essentials o f marriage without which there cannot be a valid contract of marriage. This condition, according to him, is at par with the other condition that each party should know the agreement of the other one.

Wilson p. 104.

“ Neither writing nor any religious ceremony is necessary to the validity of a marriage contract. But the words of proposal and acceptance must be uttered by the contracting parties, or their agents,

in each other's presence and hearing, and in the presence and hearing of two male, or one male and two female witnesses, who must be sane and adult Muslims.”

Here, it is clearly the intention of Wilson to indi­cate that the presence of witnesses is necessary to the validity of the marriage contract. If the two sentences are read together, the meaning becomes quite clear.Abdul Rahman p. 6.

“ A marriage is not valid unless it is contracted in the presence of two male witnesses, or of one male and two female witnesses.”Saksena p. 210.

“ The contract of marriage must be in the form of an offer and acceptance, expressed at one meeting, and uttered by the parties entering into the contract either for themselves, or as proxies, or as guardians, in the presence and hearing of each other, and accor­ding to Hanafi and Shafei laws, in the presence and hearing of two witnesses simulatneously present.”

In the case of Mst. Butoolun v Mst. Koolsoom 25 W.R. 444 (Sir Richard Garth C.J. & Ainslie J.), Hedaya was referred to, in the following words :

“ It lays down a positive rule that marriage, when both parties are Mussalmans, cannot be contracted but in the presence of two male witnesses or of one man and two women.” The learned judges accepted it as the correct statement of law govern­ing Muslim (Hanafi) marriages.

32

Thus, it will be seen that, with the exception of Baillie, Amir Ali and Mulla, all other authorities consider such a marriage as batil. I have already given reasons why the opinions of these three authors cannot be accepted. I shall again recapitu- ate them shortly. Mulla depends, for his authority, pon m ie. Baillie is emphatic in his views, and

- s D . - r u . M u k h t . r and Inaya. I have already to ciiU a: *Le ^ ^ a u t h o r i t i e s can not be saidBaillie’SCn*6 t0 V'eW ’ and virtually,L cite ^ " hiS ° Wn ipsi dixit- Amir Ali doesreasons ^ m h o r it^ and does anyreasons m support of his view that a m'irriaee

“ thalBT WUneSSeS " Thet h lr f L Amir A,i hoW

Other side. I resnectfnU kf authont>'> on ,he of Baillie and Amk AH “ tha* the V‘eWS correct rule of Ha g are ln confl‘ct Wlth the

CHAPTER VI

Married Woman.

About married women, the prohibition of the Quran is to be found in the verse 4.4.2 which is a continuation of the previous verse 4.4.1. (Text 5).

“ Prohibited to you (for marriage) are your mothers...Also (prohibited are) women already married, except those whom your right hand possess.”

The phrase has been thusexplained by Imam Razi in his Tafsir Kabir, on p. 189 of Vol. III. (Text 78).

“ God has made dependent upon theword ” i.e. the word governs the word

exactly in the same way as it governs the. word .

Fatawae Qazi Khan p. 169. (Text 35).“And it is not lawful to marry the wedded wife

of another, nor is it lawful to marry another’s mo’attada, according to all (the four Imams). If a marriage is contracted with another s wife, and he (the husband) does not know that she is the wedded wife of another, and co-habits with her, iddat becomes obligatory upon he r; but, if he did know

that she was another’s wedded wife, and co-habits with her, iddat does not become obligatory on her, so much so, that co-habitation with her does not become unlawful to her husband.” (The meaning is that her husband can immediately co-habit with her, without being obliged to wait for the expiry of the period of iddat which she has to observe. In other words, her second marriage is totally null and void, and does not produce any legal conse­quences).

Rudd-ul-Muhtar ( Vol. II p. 999-1000 ) says :(1) “The expression ‘and the iddat o f a woman

who has been married by a fasid marriage’ means •a woman who has been married without witnesses and the marriage of the wife of another without knowledge of the fact that she is already somebody else’s wife. As regards the latter, a sexual inter­course, in such a marriage, does not render iddat obligatory, if the husband knows (at the time of the marriage) that the woman is the married wife of another, because no one admits the validity of such a marriage ; and for this reason, hudd is necessary when the man marries with the knowledge of its unlawfulness, because the intercourse, in such a case, is a mere zina, as stated in Kinya and other books.”

(2) “There is no difference of opinion (among the Oolemas) on the question that the woman to be married should be free from the marriage of another.”

(3) “The mankuha of another is not, at all, a ‘muhul’ ( or a fit subject of nikah ) ; because it is not possible that there should be a union of the ownership of two persons, at one and the same time, as regards one and the same person ; and, therefore, a marriage with the mankuha of another does not create even a fasid ownership.”

(4) “ In a fasid marriage, the muhul has the capacity of marriage, but a condition of validity is wanting, but the mankuha of another is not the muhul, with the capacity of marriage.”

Fatawae Alamgiri (Text 100).“ It is not lawful for a man to marry the wife or

mo’attada of another person...If one marries a woman who is already the wife of another person, and the man does not know that she is a married person, and he co-habits with her, the woman shall have to observe iddat. ' If, however, the man does know that she is a married woman (and he co­habits with her), no iddat is incumbent on her, so much so, that her husband can immediately co­habit with her.”

Amir Ali in Vol. II p. 329 says : “A marriedwoman cannot marry again so long as the first marriage is subsisting.” Later on, he says, oh p. 406:

“ In this connection may be mentioned the case of a girl marrying two persons. The first one is valid, and the other one is dissolved, without divorce or decree. If it be not known which one was con­

tracted first, both are held null and void, and the girl will have neither dower, nor right of inheritance to either. Should the second marriage alone be consummated, it will be considered valid on grounds of public morality.” This statement is incorrect. There is a consensus of opinion among all other authorities and High Courts that the second marri­age of a woman, in the life-time of the first hus­band who has not divorced her, is totally void and inoperative and can produce no legal results whatsoever.Baillie p. 38.

“ It is not lawful for a man to marry the wife of another. If he does so, not knowing her to be the wife of another, and co-habits with her, iddat will become obligatory; if he does so, knowingly, no iddat will be necessary, so that her husband would be under no prohibition to co-habit with her.”Wilson, p. 109.

“ It is not lawful for a woman to have two or more husbands at the same time.”Abdul Rahman, p. 1.

“ A proposal of marriage may be made to any woman who is free from the marriage tie and from iddat.”Mulla, p. 232.

“ A marriage with a woman, who has her hus­band alive, and who has not been divorced by him, is void.” It appears that Mulla, in his 9th edition, called such a marriage merely fasid and not batil.

In the latest edition which has been revised by Sir Sultan Ahmad, this statement has been corrected. In fact, now it is established that if a married woman re-marries in the life time of her previous husband, she is guilty of bigamy and is punishable under S. 494. I.P.C.

Following an earlier Full Bench decision of the Allahabad High Court, (Sir John Edge, C.J. and Straight and Mahmmud JJ.), where it was held that a child whose illegitimacy is proved beyond doubt, by reason of the marriage of its parents being either disproved or found to be unlawful, cannot be legiti­mised by acknowledgement, it was held in Liaqat Ali versus Karim-un-Nisa, I.L.R. 15 All. 396 (Sir John Edge C.J. and Berkitt J.) that if a Muslim married woman re-married during the lifetime of her husband, and by her second husband gave birth to children while her first husband was alive, such children would not get the status of legitimacy, even by acknowledgement, and could not succeed to the estate of their father on his death; because such acknowledgement of the legitimacy of the children by their father would be worthless, in view of the fact that the woman was not capable of bearing legitimate offsprings to him.

On Pages 260-2, Macnaghten mentions a case where an adult Muslim woman, by her own free will and consent, married in the presence of wit­nesses; afterwards, her relations forcibly took her away from the house of her husband, and disposed of her in marriage to another man. Both the hus­

bands claimed her as wife. Hedaya and Shai hi Viqaya were quoted and followed. The former says “ If they should specify dates to the marriage, the evidence of that party which specifies the prior date, must be preferred.” The latter says “ If two persons lay claim that they married a woman, one after the other, and adduce witnesses to the fact o f their respective marriages, he who was prior in point o f time should be preferred.’

On page 563, Macnaghten refers to another case reported in 7 S.D.A. Beng. Rep. 27 (dated 20.4.1841). It lays down that a second marriage of a woman during her first husband’s lifetime is invalid, if no divorce has taken place, and such a second marriage forms no bar to the recovery o f her person by the first husband, in a civil action notwithstanding her unwillingness to go back to him.

A leading case on the subject is that o f Ata Muhammad Chowdhury v Saiqual Bibi 7 I.C. 820. fn this case, a Muslim minor girl was married to a minor, Shafi. After a week, she was married to another minor, Zakaria. Later on, she was divorced, either by the two minor husbands themselves, or by their respective fathers ; and then she was married to Hashmat Ullah who was aware o f her previous marriages and divorces. She lived with Hashmat Ullah as his wife, and gave birth to two daughters by him. On the death of Hashmat Ullah, these daughters started a suit for the recovery of their share of the inheritance left by their father.

Karamat Hussain, J, in his very well-reasoned and able judgment, reviewed a large number of original texts, and held that (1) a guardian has no power to divorce the wife of his ward on his behalf, (2) a minor, during his minority, cannot divorce his own wife, (3) a marriage with another’s wife, with the knowledge of the fact that she is another’s wife, is void, (4) the issues of such a marriage are illegitimate. The learned, judge proceeded on the basis that the maxim “ ignorantia juris non-excusat” applies to this part of the Muslim Law.

Abdul Rahman, on p. 1, mentions a case reported in Mad. Dec. S.D.A. 157 (1855), which lays down that not even a proposal of marriage can be made to a woman who is a married woman. This deci­sion is based on the analogy of the Quranic pro­hibition upon the making of a marriage proposal to a woman who is in her iddat.

Another important case which I shall refer to, in this connection, is reported in 22.T.C. 697 (Mad.), Budansa Rowther v Fatima Bi. Here, a Hindu married woman, adopted Islam, and married a Muslim in the lifetime of her Hindu husband and had children by her Muslim husband who were acknowledged by him as his legitimate children. On the death of their father, the children started a suit for the recovery of their share of the inheritance. It was held that :

(1) An acknowledgement can not legitimize the offspring of a union which had its inception in illegitimacy e.g. the offspring of zina,

(2) “The doctrine of factum valet does not excuse the violation of a legal rule, so as to make acts, performed in such violation, legally valid. That doctrine only means that a precept which merely belongs to the domain of ecclesiastical admonitory precepts, has not, in the domain of secular law, the same force as a positive and clear rule of the secular law has.”

(3) A Hindu marriage is not ipso facto dissolv­ed by the conversion of one of the parties to Islam.

(4) The learned judges referred to a rule mentioned in Hedaya which I shall mention in the words of Hamilton, Vol. I. p. 177. “ When the wife becomes a convert to the faith, {i.e. adopts Islam) and her husband is an infidel, the magistrate is to call upon the husband to embrace the faith also ; if he accedes, the woman continues to be his wife; but if he refuses, the magistrate must separate them.” (The same rule applies if the husband adopts Islam). “ If the wife embrace the faith in a foreign country, and her husband be an infidel, or, if a foreigner, there, become a Mussalman, and his wife be a Majoosiah, the separation between them does not take place until the lapse of three terms of the wife’s courses, when she becomes completely repudiated. The reason of this is, that Islam cannot be made an occasion of separation, and the requir­ing of the other party to embrace the faith is imprac­ticable, as the authority of the magistrate does not extend to a foreign land, nor is it acknowledged there; yet separation is indispensable for the re­

moval of evil; the condition, therefore, of separa­tion (i.e. the lapse of three terms of the woman’s course,) must stand in the place of separation affected by the magistrate; and in this rule no distinction is made between a woman enjoyed, and one unenjoyed.”

After giving a gist of the above quotations, the learned judges observed, on p. 700 of the report, that “ until the judge (or magistrate) has made his decree separating the parties, the connection remains valid and leads to all the consequences flowing from a a valid connection.” This sentence is not to be found in Hedaya itself, and seems to be the conclu­sion drawn by the judges themselves.

This passage of Hedaya was considered by the Calcutta High Court, in the case of “ In the matter of Ram K um ari/’ I. L. R. 18. Cal. 264, (Mac- pherson and Banerjee JJ.) which was a criminal case for bigamy. There also a Hindu married girl, on adopting Islam, married a Muslim husband and was prosecuted and convicted for bigamy. In revision, the High Court held that her conversion to Islam did not, ipso facto, dissolve her first marri­age with her Hindu husband. As regards her second marriage, the learned judges observed as follows :

“The validity or otherwise of her second marriage is to be tested with reference to the Muslim Law, and as that law does not allow a plurality of husbands, the second marriage would be void or valid, according as the first one was or was not

subsisting at that time. Under the Muslim Law, when a wife becomes a convert to Islam, and the husband is an unbeliever, the magistrate is to call upon him to embrace Islam, and if he does so, the woman continues to be his wife; but if he re­fuses, the magistrate must separate them. If the wife embraces Muslim faith in a foreign country, and the husband is an unbeliever, separation takes place on the expiration of three terms of the wife’s courses.”

“ Now we cannot hold that British India is a foreign country within the meaning and intention of the above rules, so that a Hindu marriage would have become dissolved by the conversion of the wife to Islam, on the expiration of a certain interval, without any notice to the husband. There does not exist, in the case of persons residing in British India, that necessity upon which alone is based the latter of the two rules referred to above, by which the prior marriage of a convert to Islam is said to become dissolved without any order of the court or notice to the other side.”

This case, incidentally raises the question—a very important one—of the legal position now pre­vailing in India. Can India be now classified among the foreign countries within the meaning of this rule?

In the following two cases : —(1) Government of Bombay v Ganga I.L.R.

4.B.330 (Pinhey and Melville JJ.), and (2) Hammad v K.E, A.l.R. 1931. L. 194 (Addison and Coldstream

JJ.), a Hindu married woman was convicted U/S. 494 I.P.C, for bigamy, on her marrying a Muslim husband, after her conversion to Islam, while her first Hindu husband was alive.

CHAPTER VII.

Mutallaqa.

The Mutallaqa is a married woman who has been thrice divorced by her husband and who is in her iddat. These divorces can be given either at one time or on three different occasions. The raison d’etre of the strict rule, expressly laid down in the Quran, is that the fact.that the woman has been divorced, not only once or twice, but three times, shows the utter incompatability of temperaments of spouses which makes it necessary for them to live apart. In fact, talaq is disfavoured in Islam. It is like a bitter pill which must be taken only to cure one of one’s illness.. Since talak has far-reaching consequences and

vitally affects the social and family life of a man, Quran lays down, in minute details, the law relat­ing to talak and its effects. It is laid down in seven consecutive verses in the Quran. They are as follows :—

(1) For those who take an oath of abstention from their wives, a waiting for four months is ordained; if they return, God is Oft-forgiving, Most Merciful (2.28.5). (Text 17).

(2) But if their intention is firm for divorce, God heareth and knoweth all things. (2.28.6). (Text 18).

(3) Divorced women shall wait, concerning themselves, for three monthly periods. Nor is lawful for them to hide what God hath created in their wombs, if they have faith in God and the last day. And their husbands have the better right to take them back in that period, if they wish for re-conciliation. And women shall have rights similar to the rights against them, according to what is equitable; but men have a degree of advan­tage over them, and God is exalted in Power, Wise (2.28.7). (Text 19).

(4) A divorce is only permissible twice, after that, the parties should either hold together on equitable terms, or separate with kindness (2.29.1) (Text 8).

(5) So if a husband divorces his wife (irrevo­cably), he cannot, after that, re-marry her until after she has married another husband, and he has divorced her. In that case, there is no blame on either of them, if they re-unite, provided they feel that they can keep the limits ordained by God. Such are the limits ordained by God, which He makes plain to those who understand. (2.29.2). (Text 9).

(6) When ye divorce women, and they fulfil the term of their iddat, either take them back on equitable terms, or set them free on equitable terms;

but do not take them back to injure them, (or) to take undue advantage. (2.29.3). (Text 20).

(7) When ye divorce women, and they fulfil the term of their iddat, do not prevent them from marrying their former husbands, if they mutually agree on equitable terms (2.30.1). (Text 21).

H ed a ya Bk. IV. Ch. VI. p. 301-2. (Text 79.)

“In the case of irreversible divorce, short of three divorces, the husband is at liberty to marry his wife again, either during her iddat, or after its com­pletion, as the legality of the subject still continues, since the utter extinction of such a legality depends upon a third divorce ; and, accordingly, until a third divorce takes place, the legality of the subject continues.”

“ If a man pronounces three divorces upon a wife, she is not lawful to him until she shall first have been regularly espoused by another m an; who, having duly consummated, afterwards divorces her, or dies, and her iddat from him be accom­plished, because God has said, ‘If he divorce her, she is not, after that, lawful to him (i.e. after a third divorce) until she marry another husband’.” Later on, Hedaya makes it clear that actual sexual inter­course is necessary, and the actual entrance of the second husband’s penis into the woman’s vagina is an indispensable condition.P. 303.

“ If a man marry a woman whose husband had repudiated her by three divorces, under a condition

of rendering her lawful to her former husband, this is an abominable marriage, because in such a case the second husband is termed a “ Mohullil” , or legalizer, and the Prophet has said

"let the curse of God fall upon the mohullil and the mohlil lahoo’ : but nevertheless, if the partiescontract a marriage under this condition, and the man divorces the woman after carnal connection, she, upon the completion of her iddat, becomes lawful to her former husband, as there undoubtedly exists a consummation in a regular marriage which is the cause of legality, and the marriage is not invalidated by the condition.”

Fatawae Alamgiri (Text 100).

“ It is not lawful for a Muslim to marry a free woman whom he has divorced thrice, until she takes a second husband who consummates his marriage with her, nor can he marry a slave woman whom he has divorced twice.”

Ibn Abu Zaid, as quoted in “ First Step in Muslim Jurisprudence” by Russell and Sulira- wardy, says :—

“ A man. who has repudiated his wife by a triple repudiation, may not resume co-habitation with her, until she has married another husband.” (See Text 104).

“ A triple repudiation1 makes relations between them unlawful, except after her marriage to another husband.” (See Text 105).

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“ It is not lawful for man to marry a free woman whom he has repudiated three times till another husband has consummated with her."

In Chapter VIII, Book I, on p. 151, Baillie, expresses his opinion as follows :—

“A thrice repudiated woman (is rendered law­ful in Islam) by a consummation with a second hus­band, and expiration of her iddat.” On p. 153, he says —“ It will now be seen, that the 9th class (the repudiated woman) has been disposed of by show­ing, either from direct authority, or by a parity of reason, that they are not permanently prohibited.” In his Ch. VIII, Baillie puts marriages with thrice- divorced women in the class of marriages which are merely fasid and not batil, so that, according to him, if such a woman is actually married, and co-habitation takes place, the children will be legitimate and the woman will be entitled to her dower and will have to observe iddat.

Baillie page 292.“Where a man has repudiated his wife irrevoca­

bly, without giving her three repudiations, he may marry her again during her iddat, or after its expira­tion, but when he has repudiated her three times being a free woman, or twice being a slave, it is not lawful for him to marry her again till she has been married by a valid and operative contract to another husband who, after enjoying her, has repudiated her or died leaving her his widow. And in this

there is no difference whether the repudiated woman were an enjoyed wife or not. Penetration after the second marriage is a positive condition, blit not emission” (p. 292).Amir Ali p. 405.

“ When a man re-marries a woman whom he has irrevocably divorced, without her having been married to another man in the interim and separated from him, such re-marriage is ille­gal. Mere marriage would not be sufficient, there must be consummation.”Mulla p. 284.

“When the husband has repudiated his wife irrevocably by three pronouncements, it is not lawful for him to marry her again until she has married another man and the latter has divorced her or died, after actual consummation of the marriage.”

“ A marriage without fulfilment of the above conditions is irregular, not void.” He cites Baillie, p. 151, as his authority for this statement.

“ In all other cases, the divorced parties may re-marry, as if there had been no divorce, whether during the iddat, or after its completion.” He refers to 59 l.A. and A.I.R. 1937. L.270.Wilson p. 154.

“ If the divorce took the form of a triple prono­uncement, the divorced couple may not re-marry, unless and until the woman has been re-married to another man, and divorced by him after con­

summation. No presumption as to the fulfilment of this condition can be drawn from the mere fact of re-marriage.”

Abdul Rahman.Art 134 p. 82. “The following marriages are

absolutely void : (1) The marriage contractedby a man with a woman he has repudiated three times and who has not re-married, or who has re­married, but has not been repudiated by the last husband, or who has not been left a widow by the second husband, after consummation of the marriage.”

Art 248 p. 141-2.“ Final, or triple, repudiation dissolves the

marriage at the moment it is pronounced. It does away with the husband’s authority over his wife, and renders the wife unlawful to her husband.”

“ Whoever, by one single expression, pronounces a triple repudiation against his wife with whom marriage is not consummated, or whoever pronoun­ces three repudiations, whether successively or by a single formula, against a wife with whom marriage has been consummated, cannot marry her again.”

“ For their re-union to take place, it is necessary that the wife should have been married to another husband by a valid and binding contract, that she should have been repudiated or have become a widow after a real and bona fide consummation of marriage, and that she should have completed

the period prescribed for the iddat, consequent upon repudiation or widowhood.”

"The death of the second husband before consummation of the marriage cannot make the wife's re-union with the first husband lawful.”

Case Law

Khatun v Abdullah Khan 1937. Lahore 270 (Tek Chand & Skemp JJ).

The plaintiff was divorced by the defendant on 25.9.27 and she was aware of this fact. Under the Hanafi Law a divorce by a husband evidenced by a written document, the contents whereof have been duly communicated to the wife, is irre­vocable. This being so, the fact that the parties were reconciled soon after the divorce, and continu­ed to live together for some years, could not, in law, restore their relationship of husband and wife and, consequently, the second talak given in 1932 was meaningless and could not give a fresh cause of action to the plaintiff to sue for her dower. The relationship of husband and wife having come to an end in 1927, the suit, instituted in 1933, was held to be barred by limitation.

Rashid Ahmad v Anisa Khatoon 59 I.A.21.In this case, a Hanafi Muslim repudiated his wife

three times, and then executed a deed of divorce. But soon after, a reconciliation was effected and co-habitation continued. Five children were subse­quently born of this union. The man, during his life-time, treated the woman as his wife, and the

children as his legitimate children. On his death, there arose the question of their legitimacy ; and the Privy Council laid down the following impor­tant propositions of law :—

(1) Words of divorce being clear and addressed to the wife were effective though she was not pre­sent at the place.

(2) The divorce, being triple, was irrevocable, irrespective of iddat.

(3) It was immaterial what the intention of the husband was in pronouncing the formula ; whether he intended it to be effective or not. A talak actu­ally pronounced under compulsion, or in jest, is valid.

(4) Subsequent acknowledgement of the status of the woman and of the children was ineffective in the absence of evidence of facts which might have made a re-marriage possible.

(5) No presumption could be raised from the subsequent acknowledgement of the legitimacy of the children by the father, that the lady had, in the interval, married another who had died or had divorced her, and that the lady had again validly re-married the previous husband. The legal bar to a re-marriage between the parties which was created by the divorce, prevented the raising of such a presumption.

(6) If the respondent had proved the removal of that bar by proving the marriage of the lady with another person after divorce from the first

husband, and the death of the latter or her divorce from her second husband prior to the birth of the children and their acknowledgement by her first husband as his legitimate children, the respondent might then have the benefit of the presumption, but not otherwise. Their Lorships quoted a passage from Wilson, p. 136, and said that it laid down the correct law.

Mami v Kalandar Animal 54.I.A.61.It was laid down in this case that :—(1) A muslim may divorce his wife whenever

he likes, either orally or in writing.(2) The presence of the wife is not necessary.(3) If the words used are clear and unambigu­

ous, the real intention of the husband is immaterial; if the words themselves are ambiguous, it is then that it becomes material to enquire what the intention of the husband was in uttering those words.

This case may be taken to have over-ruled the earlier case of Farzand Hussain I.L.R. 4. Cal. 588, where it was held that if the husband pronounced three talaks before a family council, in the absence o f the wife, there was no divorce.

Akhtaroon-nessa v Shariutoollah. Suth. W.R. Vol. VII p. 268 (Civil).

Tt is a very important case which was decided by Sir Barnes Peacock. C.J, and Kemp. J. The respondent brought this suit for the restitution of conjugal rights against the appellant. Tt was

proved that the parties were husband and wife, and tha t the husband had divorced the wife by three divorces. Subsequently, he re-married her and for the next three years they lived together as husband and wife. There was no positive evidence of her marriage with another person after her divorce from her first husband, and of a divorce from her second husband, or of his death, ft was pressed that it should be presumed that such a marriage with a second husband had taken place. Peacock C.J, in giving the judgment of the court, referred of Hedaya Vol. I. Bk. IV, Ch. VI, p. 301 and to Sale’s Quran p. 26, and then, after narrating the facts of the case, observed as follows :

(1) “The lower court did not consider whether the impediment to the re-marriage had been law­fully removed, and whether the defendant, at the time of the re-marriage, was lawful to the plaintiff. If it were necessary, we should remand the case for re-trial, and for a distinct finding upon that issue. But there is no evidence, on the record, which would warrant a finding in the plaintiff’s favour, on this point.”

(2) “ A mere declaration by the defendant that she was the wife of the plaintiff which was contained in the mortgage deed would be no evidence of the removal of the legal impediment to re-marriage which was proved to have been created by the divorce. Neither could a presumption be drawn from the fact of the re-marriage that the impedi­ment had been removed, and that the defendant

had again become lawful to the plaintiff for re­marriage.”

(3) “ Suppose it had been proved that the de­fendant had married another man, and it had been alleged that he had died, would the statement in the bond and the proof of the re-marriage have been sufficient evidence that the second husband had died before marriage? If not, would it be an evide­nce that he had divorced the defendant before her re-marriage? We are of opinion that no presump­tion of either of those two facts could be drawn from the mere statement in the bond, or from the fact of re-marriage. If such a presumption could be drawn from the fact of re-marriage for the pur­pose of removing an impediment to a re-marriage once proved to exist, it might also be drawn for the purpose of removing an impediment of the same nature to an original marriage; and thus, if it should be proved that a woman was once married to A, and afterwards within a year married B, it might be presumed from the fact of the marriage with B that A had died, or divorced his wife” .

(4) “There is no evidence in this case from which it can lawfully be presumed that the defendant, before her re-marriage, had married another man who had divorced her, or died and that she had accomplished her Iddat. We think that the defen­dant ought not, upon such evidence, to be compel­led to re-join the plaintiff and continue to live with him in an intercourse which, according to the Muslim Law, would be illicit and criminal.”

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This case lays down several very important prin­ciples of law relating to a valid re-marriage with a thrice-divorced wife :—

(1) The impediment to her re-marriage with her first husband must be removed before she can again re-marry him.

(2) This impediment can only be removed by :(a) her marriage with another husband ; (b) her divorce from her second husband, or his death :(c) her completing the necessary period of iddat, in both eventualities mentioned in (b) above.

(3) All the three facts mentioned above must be affirmatively proved by the party who relies on them.

(4) No presumption of any of these three facts can be drawn from the mere fact of her re-m arriage with her first husband.

(5) If she re-marries her first husband w ithout the removal of the impediment created by the triple divorce, her subsequent intercourse with him will, according to the Muslim Law, be illicit and criminal.

This case is a direct authority for the five pro­positions mentioned above. If her future intercourse with him is illicit and criminal, it will necessarily follow that children born of such a re-marriage will be illegitimate and cannot inherit to their father.

From the above resume, the following points emerge :—

(1) The Quran is absolutely explicit on the following points :—

(a) A man may divorce his wife at his absolute will.

(b) If he divorces her once or twice, he can take her back at will, before the expiry of her iddat, provided he does so with good intentions ; or he may amicably part with his wife, i.e. up to that time he has a locus paenitentiae

(c) In the sixth verse given above, the wordspoint to the fact that the order contained

therein is regarding women who have been once or twice repudiated, and whose husbands allow the period of their iddats to expire, then the order is that either k- i u* (take them back onequitable terms i.e. marry them again on payment of a fresh dower) or i.e. (set themfree on equitable terms i.e. pay them their dower and let them go). The difference in the phraseology between the 3rd verse, on the one hand, and the 6th and the 7th verses, on the other, is very noticea­ble. The former concerns c-JjL-k-,. (divorced woman generally) and there is no qualification of the word by some such phrase as (and theycomplete their iddat). In fact, the phrase Cr . jri ‘j J (shall wait concerning themselves forthree monthly courses) indicates that divorced women who have not completed their iddats, are the subject matter of discussion in this verse. In their case, it is laid down :

I *) wsl OI liU li

“Their husbands have the better right to take them back, in that period of iddat if they wish for re-conciliation.” Here the whole discretion has been given to the husband and the wife has no say in the matter.

This does no injustice to the woman. It is not the case of a khoola. Divorce was the unila­teral act of the husband. The wife was merely passive in the matter. The husband will have to pay her deferred and unpaid dower. He has been given some time to think it over, and if he so desires, he may undo, at will, what he had done, at his own free will. The woman was neither con­sulted at the time of the commission of the first act, nor is it necessary to consult her before doing the counter-act. Her position is not, in any way, altered for the worse. She was his wife before the divorce, and she will continue to hold the same status after the cancellation or withdrawal of the divorce by the husband.

But, in the 6th and the 7th verses the position is different The husband has had enough time as locus paenitentiae and has not availed himself of it. The iddat has expired. The divorced woman is no longer under his control, and has acquired a new legal status. She is now a femme sole. She cannot be taken back by the husband at his own free will. Now, if he wants her back, he can only approach her in her new legal capacity of a femme sole, and ask her for her hand in marriage.

He can get her back only by entering into a fresh contract of marriage with her, and on payment of a fresh dower, provided she agrees to contract a fresh nikah with him. Verse 7 also deals with her case, but with this difference that if she then likes to marry another person, she should not be prevented from doing so.

(d) Verses 1 and 2, given above, deal with cases of what we may call cruelty or desertion. If the husband takes an oath that he will not asso­ciate with his wife, he is given 4 months" time to think it over. If he does not, within that period, re-call his vow, the woman will be set free from his control, and will be deemed to have been divorced.

(e) Lastly, I will deal with the case mentioned in verse 5, given above. This verse has been very severely criticised by some European writers. It lays down that if a man divorces his wife three times, he can not marry her again until she validly marries another person and he divorces her. This ver­se has been interpreted by the Prophet as impliedly requiring that the second husband should actually have sexual intercourse with her, and then he should divorce her, and then she should complete her iddat, and then she can marry her first husband. Wilson on p. 155. criticises this provision in the following words, “The Quran itself is responsible for this well-intended but most unfortunate provision.” Later on, he calls it “repulsive condition,” and goes on to say :—“But some less odious, even if less effective, device would surely have been preferable

to sanctioning the detestable practice which has been the natural outcome of the law vig. that of hiring a temporary husband to legalise to the divorcer the wife whom he is minded to take back” This kind of criticism is based on a misunderstanding of the raison d ’etre o f rule. The Muslim law does not, in fact, contemplate a re-union between the couple. It places the greatest possible obstacles in the path of their re-union. If we consider this question in the light of two well known Hadises, we shall understand the real nature and purpose of the rule. The first Hadis is mentioned in Rudd-ul-Mukhtar, p. 450-1 of Vol. II. (Text 80).

Abu Daud has reported that the Prophet has declared that from among the lawful things, the thing which is most distasteful to God, is "Valak.

The second one is reported in Hedayah, Vol. II, p. 264 (Text 79).

The Prophet has said that the curse of God is upon mohullil (legaliser) and Mohlil Iahoo(the woman).

These two sayings of the Prophet bring to light the actual basis of the rule. The idea is to make it impossible for the couple ever to come together. The possibility of taking resort to a subterfuge in order to legalise a I e-marriage has been condemned in the most deterrent language and no true Muslim would ever care to draw the curse of God upon himself. Talak itself has been condemned in no un­certain manner. In fact, there is a school of

Hanafi lawyers which holds the opinion that talak is permissible only in extreme cases. There­fore, it is virtually a misrepresentation of the rule to say that it provides a “ repulsive” method for a re-marriage. In fact, it does nothing of the kind. Once the woman marries a second husband, she passes under his absolute control. Nobody can force him to divorce her. If at some remote period of time she becomes free from his control by divorce or by his death, then, if they both agree, they may re-marry again.

I now come to the next important point. It will be noticed that even Fatawae Alamgiri (Baillie’s passages on p. 44 are translations of that compila­tion) and Amir Ali do not declare that a marriage with a thrice-divorced wife is fasid. All other authors are unanimous in declaring it void. Even Baillie, in his Ch. VIII. BK. I, never expressly says so But the whole trend of Baillie, in his Ch. VIII of Bk. I, and of Amir Ali in his chapter on Batil and Fasid Marriages shows that they con­sider that in every case where the bar of prohibi­tion is not permanent, the marriage is fasid. Baillie mentions it, by the way, on p. 151. Amir Ali just describes how she can be re-married, but never men­tions this case in his discussion of fasid marriages. The only author who expressly calls it fasid, is Mulla, and he relies upon the passage of Baillie quoted above.

Now, a comparison of the law regarding marri­ages with a married woman and a thrice-divorced

v ^ . u u ,wife will bring into prominent relief the hollow­ness of their arguments in favour of regarding all those marriages fasid which are not permanently prohibited.

Baillie, on p. 38, says that a marriage with a married woman is not lawful. Amir Ali on p. 329? ays t at one cannot marry a woman who is already

married. Mulla calls it void. So all of them agree her +a marr*age w*th a married woman, knowing But th 6 a ma^ e< w°man, is void and not fasid. marriage ’ either exPressly or impliedly, hold a first contract" * thrice'divorced wife—without her fasid on the” 8 & ™arriage with another—merely

become l a w f u l l y ’ ^ BailHe SayS’ that she wiIi husband and J - tC° nSUmmati°n with a second us analyse the ^oshi!?" ° ff her ^ a t . ’’ “ Now let prohibited women-— ™ theSS tWo cIasses

lawful on t C T rCed WOman wiu becomeconditions : - of the following five

(a) Her completing the

lddat on

c Her mr r a SeCOnd h^ a „ d .(c) Her actiial co-hahits*-husband. n with her second

(d) Her getting divorre rband, or the death of the second hus-

fe) Her , SeCOnd husband.

on getting this d W o ^ f r o ” 0^ period of iddator on the death of her second LsbaTd" hUSband’

So that a marriage jyith her will only become lawful to her first husband on the fulfilment of these five conditions.

But, on the other hand, a marriage with another’s wife will become lawful if only the last two condi­tions are fulfilled. It is not at all necessary for the validity of a marriage with a married woman that her first husband should have had carnal intercourse with her before divorcing her. He might even be impotent or an eunuch. If he divorces her and she completes her iddat, she may be lawfully married. But in the case of a thrice-divorced wife, actual sexual intercourse with a second husband is neces­sary because, as Hedaya puts it, it is this inter­course which can legalise a later marriage with her first husband. If there is no such intercourse for any reason, say on account of impotency or from intention, she will not become lawful to her first husband, even by contracting a fresh marriage with him. In other words, in the case o f a married woman, two conditions have to be fulfilled. In the case o f a thrice-repudiated wife, these very two con­ditions are required to be fulfilled, and in addition to these two conditions, three additional conditions have to be fulfilled. It is a very bad logic, indeed, to hold that where the fulfilment o f only two condi­tions is necessary to validate the marriage with a woman, a marriage with her will be void, if it is contracted before the fulfilment of those conditions; but where the fulfilment o f these very two con­ditions and three additional conditions is required

to validate a marriage with a woman, and none of these five conditions has, in fact, been fulfilled, still, if she is, in fact, married and sexual inter- course has been held with her, then such a m ar­riage will not be batil, as in the first case, butmerely irregular or fasid. In other words, theabsolute insistence upon the fulfilment of the twoconditions which is demanded in the first case is not to be demanded in the second case, although, in the second case, three more conditions are to be fulfilled in addition to the original two.

Again, according to this view, a fasid marriage may be contracted with her before she fulfils any of these five conditions ; but a valid nikah with her may be contracted only after all those five conditions have been fulfilled. But if she starts fulfilling those conditions and performs some of them (e.g. completes her iddat and marries another), she becomes totally haram to her first husband, even according to Baillie, because then she will be the wife of another person. In other words, before she starts the fulfilment of those conditions, there was the possibility of some form of union with her, but after she has fulfilled some of the conditions, even that possibility is gone. According to Baillie, if the man marries her before she has fulfilled any condition and co-habits with her, they will escape hudd and the offsprings of such a union will be legitimate ; but if he marries her after she has ful­filled the first two or three conditions and only the last two or three conditions remain to be fulfilled,

and co-habits with her, the parties will be liable to hudd and the offspring will be walad-uz-zina. Such an argument leads us merely to a reductio ad absurdum.

The matter may be looked at from a third point of view. Baillie is of the opinion that a marriage with a thrice-repudiated wife will be merely fasid and not batil, “ because the bar of prohibi­tion in her case may be removed by the consum­mation of her marriage with a second husband, and by the expiration of her iddat after getting a divorce from him.” This statement contains many incongruities :

(1) If she is married by her first husband by a fasid nikah, how is she going to marry another husband and have sexual intercourse with him in order to give an ex post facto validity to such a marriage ?

(2) If she marries a second husband, will it, or will not, amount to her having two husbands at one and the same time? Will she not be guilty of bigamy? If her first marriage remains valid, the second one will be inoperative; if, on the other hand, the second one is held to be valid, what will happen to her first marriage? Will it remain in suspense during the period of the continuance of her second marriage and the subsequent period of her iddat, and then, ipso facto, spring up on the happening of these two contingencies?

If the first marriage does not survive, then what is it that was fasid ? The argument amounts to this.

A marriage is contracted which is fasid and not valid. It will become valid on the fulfilment of cer- ain conditions. So long as no attempt is made to

Tiv 'r OIj a ^asis ^ fulfilling those conditions, asi nikah may continue; but as soon as an

attempt is made to fulfill those conditions then,

w i l l Verl r? Step taken t0 brin§ about that resultbe made6 marriaSe (which was going tobe made sahih) dissolve into the thin air.

the<s3e)co^dhhusbandhrefPen ‘° ^ marriage ifnusoand refuses to divorce hpr nfter hermarriage to him ? “ ivorce ner attei nei

and( on lom pkdon o f 'h e ^ ^ SCCOnd hUSband marries her fim husband w i f ^ n o t ° f ^ anew marriage altogether? l 1 amount to a to be a continuation of th Can il be deemed fasid marriage ? e Previ°usly contracted

(5) In this last case u,-n marriage be deemed to h n0t the first fasid her marriage with the ^ keen buried deep by result that no question f ? ° nd husband ?, with the can possibly arise ° 6X acto validation

The net result is that •that the view expressed h ** must be admitted foundation at all ^ baillie has no logicalmore absurdities it ,more ^ is analysed, the

11 produces.

CHAPTER VIII Unlawfulness arising from pregnancy.

Pregnancy of a woman may arise under various circumstances, and the law regarding a marriage with her differs according to the particular circum­stances of the case. These various circumstances are the following ones :—

(1) Where the pregnancy is due to zina, pure and simple, with somebody other than the person who subsequently marries her.

(2) Where the pregnancy was due to zina, pure and simple, and the subsequent marriage was con­tracted with the adulterer himself.

(3) Where the pregnancy was caused lawfully by the previous husband or master of the woman and subsequently she came under the contract of marriage with somebody else.

The law governing these alternative cases has thus been expounded by the Muslim jurists .

Qazi Khan p. 169 ( Text 35 ).“And it is lawful for a woman, who is pregnant

by means of zina to marry, but her husband shall not have intercourse with her until she is delivered,

according to Abu Hanifa and M oham m ad ; but Abu Yusuf says that in such a case her m arriageshall no t be valid.”

Hedaya p. 26. (Text 81).“ If one marries a woman who is pregnant by

zina, the nikah will be valid, but the husband is not to co-habit with her until she is delivered of her child. This is the opinion of Abu Hanifa and Mohammad. Abu Yusuf says that the nikah is invalid. If, however, the descent of the foetus be known and established, the marriage is null and void, according to all the doctors.’’Baillie p. 38.

“ Abu Hanifa and Mohammad have said that it is lawful for a man to marry a woman pregnant by whoredom, though he must refrain from matri­monial intercourse with her till delivery. Abu Yusuf says that the marriage is not valid, but the Fatwa is in accordance with the opinion of the two others. As it is not permitted to have connection with her, so also it is not permitted to solicit her. When a man marries a woman with whom he has already had illicit intercourse, and it appears that she is pregnant, the marriage is lawful, and he may have connection with her. A man marries a woman and she miscarries a child which appears to be created or fully formed : if the marriagetook place four months previous to the date of miscarriage, it is lawful, but if it took place within this period, it is not lawful, for creation is not estab­lished in less than 120 days. The marriage of a

woman pregnant of child whose descent or pater­nity is established, is not lawful according to all opinions.”

Amir Ali, quoting Rudd-ul-Muhtar Vol. II, p. 477, says in his Vol. II p. 329

(1) “ According to all the sects, it is unlawful to contract a marriage with a woman who is enci- ente, if it be known that the pregnancy is from her husband or master, whether he be a Muslim, a Zimmi or a Harbi, and whether it is by a valid or an invalid marriage or a mere semblance of marriage or ownership by the right hand.”

Such a case can arise where a woman is divorced by her husband and, after completing her iddat, she re-marries, and, later on, it is found that she is pregnant. But such a case must be rare because the pregnancy would ordinarily be discovered during the period of iddat. Generally such cases would have arisen where a master, after having sexual inter­course with his slave girl, gave her in marriage to someone else.

On page 330, Amir Ali, again relying on Rudd- ul-Muhtar, Vol. TI, p. 478, says:—“According to Abu Hanifa, it is lawful for a man to contract a marriage with a woman who is pregnant by fornication with somebody else, though connubial intercourse is forbidden until she is delivered. This is the opinion of Abu Hanifa and Mohammad. Abu Yusuf differs from them and holds such a union to be invalid ; but the Fatwa is with Abu Hanifa and M oham mad.”

“The Shafeis, Malikis and Hanbalis agree with Abu Yusuf.”

“Where a woman is pregnant by fornication with the same man who marries her, the mar­riage is lawful, and connubial intercourse is not forbidden between them. On this there is consensus. The Shafeis and Shias agree with Hanafis on this point.”

On page 403 of Vol. II, Amir Ali writes “ A marriage with a woman, who is bearing a child whose paternity or nasab is known, is placed in the same category as a marriage contracted during the period of iddat. In other words, when it is known by whom she is enciente, and the pregnancy is consequent upon a lawful contract, nobody else can marry her until after her delivery. The illegality of such a marriage is founded on an express direction contained in the K oran.”

CHAPTER IX.

Marriage during Iddat

The subject of marriage during iddat may be considered under three heads :—

1. Where a marriage is contracted with a woman who is herself observing iddat.

2. Where a marriage is contracted with one woman during the period of the iddat of another woman.

3. Where a marriage is contracted by a man who is not allowed to marry because some woman is observing iddat.

We shall discuss these three cases in this very order :

1. Marriage with a woman who is herself in iddat.

These cases are mentioned in the Quran in the following verses :

1. 2.28.7.Divorced women shall wait concerning

themselves for three monthly periods. N or is it lawful for them to hide what God hath created in

37

their wombs, if they have faith in God and the Last Day. And their husbands have the better right to take them back in that period, if they wish for reconciliation. (Text 19).

2. 2.30.3.If any of you die and leave widows behind they

shall wait concerning themselves four months and ten days. When they have fulfilled their term, there is no blame on you if they dispose of themselves in a just and reasonable manner. (Text 22).

3. 65.1.4.Such of your women as have passed the age of

monthly courses, for them the prescribed period, if ye have any doubt, is three months; and for those who have no courses (it is the same). F o r those who carry (life within their wombs) their period is until they deliver their burdens. (Text 28).

4. 33.6.9.O ! ye who believe. When ye marry believing

women, and then divorce them before ye have touched them, no period of iddat have you to count in respect of them so give them a present and set them free in a handsome manner. (Text 25).

5. 2.30.4.There is no blame on you if ye make an offer of

betrothal or hold it in your hearts. G od knows that ye cherish them in your hearts, but do not make a secret contract with them except in terms honourable, nor resolve on the tie of marriage till the prescribed period is fulfilled. (Text 11).

O Prophet ! When you do divorce women, divorce them at their prescribed periods, and count accurately their prescribed periods and fear God, your Lord: and turn them not out of their houses, nor shall they themselves leave, except in case they are guilty of some open lewdness. (Text 26).

7. 65.1.6.Let the women live in iddat in the same style

as ye live, according to your means; annoy them not, so as to restrict them. And if they carry life in their wombs, then spend (your substance) on them until they deliver their burden : and if they suckle your (offspring) give them their recompense : and take mutual counsel together, according to what is just and reasonable. And if ye find yourselves in difficulties, let another woman suckle (the child) on (the father’s) behalf. (Text 29).

8. 65.1.7.Let the man of means spend according to his

means and the man whose resources are restricted, let him spend according to what God has given him. (Text 30).

9. 65.1.2.Thus, when they fulfil their term appointed,

either take them back on equitable terms or part with them on equitable terms ; and take for wit­ness two persons from among you, endued with justice, and establish the evidence as before God. (Text 27).

10. 2.30.2.The mothers shall give suck to the offspring

for two whole years, if the father desires to complete the term. But he shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on it greater than it can bear. No mother shall be treated unfairly on account of her child, no father on account of his child, and heir shall be chargeable in the same way. If they decide in weaning by mutual consent, and after due consultation, there is no blame on them. If ye decide on a foster-mother for your offspring there is no blame on you, provided ye pay (the mother) what ye offered, on equitable terms. (Text 24).

11. 2.28.1.They ask thee concerning women’s courses.

Say : they are a hurt and a pollution : so keepaway from women in their courses, and do not approach them until they are clean. But when they have purified themselves, ye may approach them in any manner, time or place ordained for by God. (Text 16).

12. 2.28.2.Your wives are a tilth unto you; so approach

your tilth when and how ye will. (Text 23).Thus it will be noticed that the first three verses

relate to women with whom the husband has had sexual intercourse.

(1) The first of them deals with the case of a woman who has been divorced by her husband.

She is to keep iddat for the period of three courses.

(2) The second one deals with the case of a woman whose husband has died. The period of iddat prescribed for her is four months and ten days.

(3) The third verse contains two provisions :(A) Two classes of women, i.e., (a) women

who are past the age of menses ; and(b) women who are not getting menses for some reason are to observe iddat for a fixed period of three month's.

(B) Pregnant women are to keep iddat until delivery.

(4) The fourth verse ordains that women who have not been enjoyed need not observe iddat.

(5) The fifth verse prohibits even a proporsal of marriage from being made to a woman in her iddat.

(6) The sixth verse lays down that the period of iddat should be carefully counted.

(7-8) The seventh and eighth verses impose a liability upon husbands to maintain their wives during the period of their iddats.

(9) The ninth verse orders that the final departure of the wife from her husband’s house on the expiry of the iddat should be witnessed by two witnesses.

(The last three verses have no direct bearing upon iddat. I have mentioned them for the sake of analogy.)

(10) The tenth verse imposes upon the ex- husband the liability to maintain his ex-wife (whom he has divorced) during the period she gives suck to his child.

(11) The eleventh verse prohibits sexual inter­course with wives during the periods of their menses.

(12) The twelfth verse gives a free authority to husbands to co-habit with their wives.

First we shall consider the various periods of iddat. Qazi Khan describes the general case in a succinct manner. (Text 82).

“ Iddat on talak is sometimes regulated with reference to menses, sometimes with reference to months and sometimes it is regulated by delivery.” As regards a woman who has been divorced by her husband after co-habitation, there is no d iffe re n c e of opinion among the jurists at all. All jurists agree that in her case :—

(1) If she is subject to menses, the period of iddat is three menstrual courses.

(2) If she is past the age of menses, or if her menses have stopped for some reason, the period of iddat in her case is full 3 months (lunar months). Amir Ali says that the period of iddat, in such a case, is 90 days. It is respectfully submitted that it is not correct. The Quran puts it at 3 months. Hedayah says the same thing, relying upon the Quran (See Text 86). “The iddat of a woman who, on account of extreme youth or age, is not subject to the

menstrual discharge, is three months, because God has so ordained in the sacred writings.” In Muslim Law, time is calculated according to the lunar months. They may be of 29 days or 30 days. Therefore such an iddat, in practice, can never last for 90 days. It will be a day or two less than 90 days (See Hamilton, Vol. I, p. 360). Md. Yusuf in Vol. II, p. 130 (p a ra 1246 ) translates the relevant passage from Kazi Khan as follows :

“ In the case of a full grown child, the months are reckoned with reference to the moon (and the reckoning is not to be made by the number of days). If the marriage takes place on the tenth of a month, she shall have to reckon 20 days of this month and five lunar months, and 10 days out of the sixth month (although by this reckoning she might not get 180 days). Similarly (reckoning is to be made) in (case of) the iddat of an Aysa woman (i.e., one who has reached the age when her monthly course has stopped, her iddat is three lunar months, reckoned in the above manner.” (Text 83).

Thus Quazi Khan makes it very clear that in this case, the period of iddat is not 90 days. It is just 3 lunar months ending on the very date on which it began.

As regards the necessary period of iddat on the death of the husband, again there is generally no difference of opinion among jurists that it is four months and ten days. It is so, whether she has been enjoyed by the husband or not. A distinction is to be made in the case of a woman who has been

divorced by her husband who dies before the expiry of her iddat. If the talak is a reversible one, she is to observe iddat for four m onths and ten days. Tf, on the other hand, the talak is bain or irrevocable, she will continue to complete the same iddat which she was observing upon talak, unless she succeeds to the property of her hasband, in which case, she will have to observe iddat for 4 months and 10 days. Tf she is divorced before a valid retirement takes place, she is not to observe any iddat whatsoever. An important question arises here, what is a valid retirement? This should first be explained.

Hedayah says (Text 87), “ If a man retires with his wife, and there be no legal or natural obstruc­tion to the commission of the carnal act, and he afterwards divorces her, she gets the whole dower.” (Hamilton Vol. I, p. 127) Then Hedayah describes the conflict of view between Hanifis and Shafeis on the question of her right to get the full dower or half dower. On p. 128 of Hamilton, we find this passage. “ If a man retires with his wife, whilst one of them is (a) sick, or (b) fasting in the month of Ramzan, or (c) is in the Ihram of Pilgrim age, whether obligatory or voluntary or (d) is on a visitation of the shrine of the Prophet or whilst(e) the woman is in her courses, this is not regarded as khilwat-e-sahiha. Qazi K han mentions these cases and a large number of others in which the retirement will not be deemed to be a khilwat-e- sahiha and then says :—(Text 88).

“ If the retirement is invalid, then, if the inva­lidity of the retirement arises on account of some­thing relating to Shera, although the husband is really able to have sexual intercourse (e.g. fasting in Ramzan etc), then the woman is obliged to observe iddat; but, if the invalidity of the retirement arises from the husband’s inability to have actual sexual intercourse, then the woman is not obliged to observe iddat, and the same is the case (i.e. she is not to observe iddat) if her husband divorces her before retirement.”

If there has been khilwat-e-sahiha, then iddat becomes obligatory upon the woman whether there has been any carnal act or not, because “ the iddat is the right of the law and of the faetus” jJ> 1* J ^ ( Hedaya Vol. II p. 66.) But if no khilwat-e-sahiha took place, the woman need not observe iddat. This is the interpretation that has been put upon the words of the verse 33.6.9. 0* Cr* a* (Divorcethem before you have touched them).

As regards a pregnant woman who has been divorced, there is no conflict of views among the jurists who all agree that in her case the priod of iddat expires on delivery.

When a man dies leaving behind his pregnant . wife, then, again, all jurists are agreed that the ■period her of iddat is increased upto the time of delivery, if the delivery takes place after the expiry of the normal period of iddat. But if the delivery takes place before the expiry of the normal period38

of her iddat, then according to some modern text-book writers, her iddat will last for the full

w!* r psTtof four months and ten di>ys- somet h ^ f 6 3lS0 deC'ded 10 that efre« - It iscarefully neCeSSary t0 cxamine this point rather

t h / I l QUraf" makeS no d''stmction between observe vli ? pregnant women who have to so ow L , l ° " d,VOrCe and those wh0 bave to do I s “ F \ atH ° f their husba" ds- H merelyr bS, « j rP: r

- - - X r ~ e r 0f ~ da; sd applies

is observinghher Sid d a t^ (TeXt 8 2 ) ' " , f t h e w o m a naccount of sexual inte ° aCC0Unt of divorce, or on account of death then ? ° UrSe from doubt, or on whether she was nre ^ lddat Shal1 be de,ivery’became obligatory f the time the iddatsuch obligation arose” * ( t preSnant afte1’Pregnant by zina h r ’■ n she becameSy zina or m any other way).

Fatawai Alamgiri (Text 100)Tt is not lawful fOT!1u >•

or the mo’attada of antu t0 marry the W 6Thn a u * anther P^son.Ibn Abu Zaid (Text 106)“The period of retreat ■ u

repudiated bv her i. ln he case of a woman

J™ or a scriptural womal’ She ^ 3 M Tbetween her memt™ i ee clear intervals

enstrual periods.”

“ Tf she have not begun or have ceased mens­truating, the period will be three months.”

“ Where the woman is pregnant, her retreat will continue untill the birth of the child ; and this will be so, whether the cause of retreat be death of a husband or repudiation ; also, whether she be a Muslim or a scriptural woman.”

“ A woman repudiated before consummation has not to undergo retreat.”

“On the death of her husband, a woman shall undergo a retreat of four months and ten days; whether she be minor or adult; whether consum­mation has taken place or not; and whether she be a Muslim or a scriptural woman.” Russel and Suhrawardy p. 39.

Baillie on p. 366 says that the iddat of a preg­nant woman continues till her delivery whether it was occasioned by repudiation, death, or relin­quishment or connection under a semblance of right and whether the pregnancy be such that the nasab of the issue is established or not.

Amir Ali says on p. 560 :—“In the case or a pregnant woman iddat lasts until delivery” On page 403, he says that marriage with a pregnant woman is like one in her iddat. If it be known by whom she is pregnant, nobody else can marry h e r . until after her delivery. “The illegality of such a marri­age is founded on an express direction contained in the Quran.”

“If the woman is pregnant, her iddat continues, in any case until delivery i.e. whether it be on divorce or on death.” He bases his statement upon Baillie.Abdul Rahman p. 176.

“The period of iddat of a pregnant woman ends with delivery, provided the child, when born, is partly formed. This is the case whether the retire­ment (iddat) was consequent upon her husband’s death, or upon the dissolution of the marriage by repudiation.”Mulla p. 233.

When the marriage is dissolved by death, the duration of the iddat is four months and ten days. I f the woman is pregnant at the time, the iddat lasts fo r four months and ten days or until delivery, which­ever period is longer. It will thus be seen that Mulla, is the only writer who makes this state­ment and he bases his statement on the authority of Jhandu v Mst. Hussaini Bibi I.L.R.4. Lah. 192. This case will be discussed later on.

Having considered the question of the duration of various kinds of iddats, the next im portant question is one which relates to a marriage which is contracted with a woman who is undergoing iddat.

In this connection, one point is very clear. Tf the iddat is due to a revocable divorce, the husband can, at any moment, resume his marital rights by

giving a mere notice to the woman, and he can do so even against her will.

Hedaya p. 248 says : (Text 89).

“ If a man gives his wife one or two reversible divorces, he may take her back any time before the expiration of her iddat, whether she likes it or not, because of the command of God, “ Retain them on equitable terms” without any distinction (between her willingness or unwillingness). The existence of iddat is a condition because rij’at is a conti­nuation of ownership because, you see, God has called it imsak (hold on), and that remains;and this continuation of ownership can only be during iddat, because there remains no ownership after the expiry of the iddat.”

Again on p. 263 Hedaya says : (Text 79)

“ If there is a talak-i-bain—irrevocable divorce— but not three divorces, it is lawful for her husband to marry her either inside the period of iddat or after the expiry of iddat. as the lawfulness of mahal continues, because its disappearance depends upon the third divorce, and the lawfulness will not be extinguished before that (i.e. the third divorce). A stranger is prohibited to marry her within this period of iddat because it may cast a doubt regard­ing the nasab (of the child, if any), and not because of any doubt about talak. If there be given three talaks to a free woman, or two to a slave woman, she cannot become lawful to her previous husband until she has married another man by a valid nikah

and he has co-habited with her and, then, has divor­ced her or has died. The reason is the word o f God, “ If you divorce her, she will not not be lawful to you until after she has married another husband.”

Baillie, on p. 290, writes: “ The right to retain a repudiated wife is at an end as soon as she has come out of her third menses if she be free” Here he is discussing the case of women who have not been divorced by three talaks whose case he con­siders on p. 292.

Amir Ali says, on p. 557: “ When a man has divorced his wife by one or two revocable talaks. he may retain her while she is still in her probation.”

Abdur Rahman p. 133.“ If one divorces his wife by one or two divorces

and the marriage had been consummated, he has the right to take her back during iddat, even after his re-nunciation of this right, without the necessity of another marriage or of a new settlement of dower. The right to take her back can be exercised even without the wife’s consent and without the husband being obliged to give her notice. The husband only loses this right at the expiry of the period of iddat.”

Since there is no difference of view on this point,I need not stress it any further.

Therefore, the question to be considered now is one which relates to women who have been divorced

either by a talak-i-bain or by three divorces by another person. No such question can arise in the case of one’s own mo’attada, because if a man has divorced his wife once or twice, he is allowed to retain her, as has been shown above. If he allows the period of iddat to expire, the woman, will then, no longer be a m o’attada (a woman in iddat), but will have the full status of a free woman. If, on the other hand, he divorces her thrice, he cannot marry her until she first marries another man, co-habits with him, gets a divorce from him and observes another iddat. So that, in any case, the question of one’s own mo’attada does not arise. Tt is only the m o’attada of another in whose case the question can possibly arise.

One short point may be mentioned again at the outset of this discussion. Iddat is obligatory on a woman even in cases where she has been di­vorced once or twice. This little point will assume great importance in the course of the discussion.

The Quran, it will be noticed, has not, any­where, said directly “ Do not marry a woman in iddat” or that “women who are undergoing iddat are haram to you,” as it has said about mushrikin and mothers etc. Tt has, in this case, adopted another form of prohibition. In the case of divorced women and women whose husbands have died, it has given the command by using the words ^(they shall wait concerning themselves (verses 2.28.7. and 2.30.3.) The verse 65.1.4. which prescribes the period of iddat for women who do not get menses

or who are pregnant is really supplementary to these two verses. Therefore, the main question turns upon the interpretation of these two verses.

Imam Razi, in his Tafsir Kabir, Vol II pn 241-9 discusses the verse (2.28.7). First he gives the text of the verse and then says : “Talak makes iddatobligatory. Know that a “ motallaqa” is a woman who has been divorced. She can be unmarried or married. If she is unmarried, and she is given a talak, she will be mutallaqa according to d ic t io n a r y ; but according to law she will be called “ghair mota­llaqa, and no iddat will be obligatory on her on account of her co-habitation with the man who gives her talak. Now, as regards a married w o m a n , either she is one with whom co-habitation has taken place, or one with whom it has not taken place. If no co-habitation has taken place with her, no iddat is obligatory upon her, because of the order o f G o d that if you marry Muslim women and d iv o rc e them before you co-habit with them,there will be no iddat for them. If, on the other hand, she is o n e with whom co-habitation has taken place, then either she is pregnant or non-pregnant. If she is pregnant the period of her iddat is delivery and is not reckon­ed by the number of monthly courses; for God has said that the iddat of pregnant women continues till the time of their delivery. If she is non-preg­nant, then, either she is subject to menses or n o t subject to menses. If she is not subject to m en ses , either on account of her extreme young age or because she is very old, then the period of her

icoai is reckoned by months and not by menstrual courses, because God has said “ such of your women etc." If she is subject to menses, then either she is slave or a free woman, ff she is a slave girl, her iddat is two monthly courses and not three.I ' she is a married woman and has been divorced after co-habitation, is not pregnant, is subject to rrenses, and is a free woman, when all these quali­fications are found in her. then, her iddat is three monthly courses, on account of what God has com- rr.anded in this verse.

I have given a translation of the whole of this passage because it is, by far. the most comprehen­sive and the most analytical exposition of law on the subject, which I have found in any text book.

The chart, on p 306. which is based upon the aforementioned extract from the Tafsir Kabir, will clarify the position.

Then on p. 242, Imam Razi himself formulates a question : “ Since the language of the sentenceis descriptive, while imperative mood is meant, the question arises : How can an imperativesense be deduced from a descriptive sentence.” He himself answers the question and says that it can be so deduced for two reasons. Then he dis­cusses the question from various points of view and comes to the conclusion that the command, though descriptive in form, is imperative, in sense and in reality.

Qazi Khan makes a short categorical state­ment (Text 35).

39

Divorced woman

ii

Married woman Stranger

(N o iddat)

One with whom Sextual "jj ^ intercourse has taken place.

IOne with whom no " jJ ^ sextual intercourse " has taken place.

(No iddat)

Non-Prcgnant woman "<idj U Pregnant woman ^

(Iddat lasts till the dc’iv^ of child. It is not c<vJnT by menses.

Subjcct to ' • -i menses

N »t subject o t J •ito menses ••

iddat is counted by months not by menses. It is three lunar months exactly.

Free woman

The period of iddat is three monthly courses.

Bonds woman " A -iJ’j

The period o f iddat is two monthly courses.

" I t is not lawful to marry the m ankuha or m o ’a t tada o f another. On this there is a consensus of opin ion ."

Hedaya. as has been mentioned above, says (Text 79).

“ A stranger is prohibited to marry her in her iddat for fear of creating a confusion in the nasab o f the child, if any, in the womb of the m o th e r .”

Rudd-ul-Muhtar Vol. II p. 574.“ It is stated, in this place, in the Buhr (Buhrul

Rayeq) on the authority of the Mujtaba that in every nikah, as regards the validity of which the learned have differed (e.g. a marriage without witnesses), sexual intercourse in that marriage establishes the obligation of iddat. But in the case of a marriage of a woman who is already the wife of another, or who is in the iddat of a different man, sexual intercourse in that marriage does not establish iddat, if the husband knows that the woman is the wife of another, or is in the iddat of a different man, because nobody has laid down the validity of such a marriage and, therefore, the marriage shall not be held to have been contracted at all...It is for this reason that punishment (or hudd) is esta­blished, if the husband is aware of the unlawful­ness, because sexual intercourse in such a marriage is zina, as is laid down in Zineea and other books.” There is a passage quoted by Rudd-ul-Muhtar from Mohit which may be interpreted as meaning that a

marriage with a m o’attada is fasid. But Rudd-ul- Muhtar, after discussing it at length, concludes thus: And the result is that there is no difference between

a fasid and a batil marriage in a matter other than that of iddat.” Thus, his view must be taken to be that a marriage with a mo’attada is batil. Tahtawi, a commentary on Dur-ul-M ukhtar has taken this passage from Mohit, through Radd-ul- Muhtar.

Ibn Abu Zaid opens a new heading of “ Illegal Marriages” ( ' ^ U l Under this heading hewrites as follows :

The law forbids : (4) a marriage during the woman’s retreat. (See Text 107). " R usse lf and Suhrwardy, p. 9 .

Later on, Ibn Abu Zaid starts a n o th e r heading of ‘’Perpetual Impedim ents” / .^ .cau ses

which will create a perpetual bar to the m arriage.

He says :“ A perpetual p roh ib it ion ag a in st m arriage

arises :(1) when a man prosecutes an action of

imprecation against his wife.(2) When a man marries a woman during her

retreat, and intercourse takes place during the retreat. (See Text 108).

Ibn Abu Zaid belongs to the Maliki School and is an exponent of the Maliki Law. Therefore, it is clear that, according to the Maliki School, if a

person marries a woman during her iddat and co­habits with her during the period of her iddat, she becomes forbidden to him for ever, and he can never take her as his lawful wife, even by con­tracting a fresh nikah with her after the expiry of her iddat. The Malikis take an extreme view in this matter, but, nevertheless, it shows to what extent a marriage with a woman who is in her iddat. is abhored by the Muslim jurists. (Text 109).

Among modern authors, almost all, except Abdul Rahman, have called it a fasid marriage.

Wilson on page 117 calls it a fasid marriage on the solitary authority of Baillie.

Baillie on p. 151, Bk. 1 Ch. VI11. (which contains his own views) says that since a mo'attadah can become lawful by the expiry of her iddat, she cannot be said to be perpetually prohibited to a man and, therefore, a marriage with her cannot be void. But he entirely ignores the clear passage of the Fatawae Alamgiri which he has himself para­phrased, on p.38, in the following words :—“It is not lawful for a man to marry the wife, or the mo’attadda of another, whether the iddat be on account of repudiation, death or the consumma­tion of an invalid or a semblable marriage ....... Itis lawful for the master of the iddat, that is, the person by connection with whom it is induced, to marry the m o’attudda when there is no other impedi­ment besides the iddat."

Here, in this passage mo’attada and mankuha are put together absolutely on the same level.

Amir Ali. Vol. IIPage 319.

“The validity of a marriage under the Mahotn-madan Law depends primarily on the capacity of the parties to marry each other.”Page 320.

“ As a general rule, it may be remarked, that under the Islamic Law, the capacity to contract a valid marriage rests on the same basis and depends on the same conditions as the capacity to enter into any other contract.”

“ In the first place, the parties must be able to understand the nature of their act” .......

“ Puberty and discretion constitute the essential conditions of the capacity to enter into a va lid con­tract o f marriage.”Page 322.

“ Besides puberty and discretion, the capacity to marry requires that there should be no legal disability or bar to the union of the parties, r/z.,

(a) that they should not be within the prohi­bited degrees or so related to, or connected with, each other as to make their union unlawful.

(b) that the woman must not be the wife or a mu’attadda of another man.”Page 389.

“ A marriage during a woman’s iddat, under the Hanafi law is only invalid. Thus, whilst the hus-

bind and wife are to be separated, if co-habitation takes place, the issue, if any, would be legitimate, and the parties can enter into a fresh contract of marriage."Page 402.

“ Should a man contract a marriage with a woman during her iddat, with the knowledge of the fact that she was observing iddat, being the widow or divorcee of another, such a marriage would be invalid. After the expiration, however, of the probationary period, he can enter into a contract of marriage with her, de novo. If the marriage is followed by co-habitation, the separated woman would be entitled to her dower, and any child born of the connection would be legitimate."

Page 403."A marriage with a woman, who is bearing a

child whose paternity or nasab is known, is placed under the same category as a marriage contracted during the period of iddat. The illegality of such a marriage is founded on an express direction contained in the Koran."

Thus, it will be seen that Amir Ali’s statements on pages 319, 320, 322 and 403 cannot be reconcil­ed with those on pages 389 and 402.

He starts with the statement, on page 319, that in Muslim Law, the validity of a marriage depends upon the capacity of the parties. On page 320, he makes a correct statement that the Muslim Law requires the same kind of contractual capacity

among the parties to the contract, whether the con­tract they are entering into, is one of marriage or of any other kind. He goes on to say that puberty and discretion constitute the essential conditions' of this capacity. On page 322, he mentions one additional condition of the capacity to marr\ i.e . there should be no legal disability or bar to the union, of the parties. Immediately, thereafter, he ampli­fies his statement by saying that the parties shouid not be within the prohibited degrees of re la tio n sh ip and that the woman should not be the wife or the mo’attada of another.

Thus stopping at this place, let us analyse statements. They amount to this.

(1) The validity of the marriage depends u r on the capacity of the parties.

(2) This capacity is made up of three i n g r e d i ­

ents (a) Puberty, (b) Discretion, (c) Absence of any bar to the marriage of the parties in question.

(3) T h is b a r to the marriage of the parties m question may be of two kinds : (a) The parties may be related to each other within prohibited degrees, or (b) the woman may be the wife or the m o ’a tta d a o f another person. Therefore, if the woman is the mo’attada of another person, there will be wanting the third ingredient which is necessary and e sse n tia l, according to Amir Ali himself, for the validity o f the marriage. Tn plain language, he must be taken as stating that if the woman is the m o’attada of another, a marriage with her will be invalid. T h is inference gathers force from what he says, on page

389, that “ the parlies can enter into a fresh contract of marriage" after the woman completes her iddat, i.e. the completion of the period of iddat will not, ex post facto, validate the previous nikah which remains invalid.

If the parties are to enter into a fresh contract of marriage after the removal of the prohibition, how can the nikah contracted during the period of iddat be said to have any valid existence in the eyes of law ? If the woman can have a “ legal capacity” to enter into a contract of marriage only after the expiry of her period of iddat, how can she have such a capacity before such expiry? and if she then possessed no capacity to marry, how can her purported marriage produce any legal results when it was contracted by her while she was labouring under an incapacity ?

Amir Ali, however, states on pages 389 and 402, that whilst the husband and wife are to be separated, if co-habitation takes place before the separation, the woman would be entitled to her dower and the child born of the connection would be legitimate. He cites no authority for these statements. One fact glares out very prominently. On page 402, immediately after making the above statement, ne refers to the Maliki law and says :—“ It is a doubt­ful point in law, whether, under the Maliki jule, a man contracting a marriage with a woman m ignorance of her iddat would be absolutely tor- bidden to co-habit with her. Several cases whichhave been decided in Algeria serve to show that,

when a contract has been entered into in good faith, without the parties being aware of the un­lawfulness of the act, it is regarded by a liberal interpretation of the Maliki Law, as valid.” Here, he specifically notes the case of a marriage with a mo’attada contracted in bona fide ignorance ol the fact of her being in iddat . He brings up the ques­tion of bona fides and mala fides, but only with reference to the Maliki Law. Ignorance of the fact of her being in iddat will, even under the Hanafi Law, bring into action the doctrine of Shubh and the child, if any, of such a connection, will be legi­timate. In fact, there is no difference of opinion, at all, on this point. The controversy relates solely to a marriage with a m o’attada which has been contracted with full knowledge of the fact of her being so.

In the footnote (3), on page 402, Amir Ali gives what may be called the raison d ’ etre of the rule which prohibits a marriage with a mo'attada- He says, “The extreme solicitude of the Mussalm^11 Law with respect to the legitimacy of the children, .and its aversion to bastardise the offspring of valid or invalid unions, has led to the formulation of the rule of iddat. Every woman separated from hei husband, and every widow is required to abstain for a specific period from contracting a fresh union,, until it is known with certainty whether she is en- ciente or not...This prohibition guards against confusion of parentage” This, in fact, is the real reason for creating the bar to a marriage with a

no 'attada. If it is accepted, the parties should not be allowed to do anything to frustrate the object of the rule.

The statement of Amir Ali, on page 403, that ‘’the illegality of such a contract is founded on an express direction contained in the Koran" is an equivocal one. It may have reference to a marriage with a pregnant woman or to a marriage with a woman in her iddat. Probably he meant to refer to a pregnant woman, because the heading of the paragraph in which this sentense occurs, is ‘"Marri­age with a pregnant woman.” Even if it be so, marriage with a pregnant woman, according to him, is like one with a mo’attada. If Quranic injunctions are to be followed in one case, they should be followed in the other case also. The phraseology o f the Quran, in both cases, is similar.

Abdul Rahman.P. 18. “ Before the completion of the pres­

cribed period, marriage is not permitted with a woman in iddat, whether such iddat is in con­sequence of repudiation, of the husband’s death, or of the cancellation of a void marriage.”

P. 80. “ Where a man contracts a marriage with a woman who is already married or with a woman who is observing iddat , consequent upon repudiation or widowhood, such a marriage is void and the man who contracts such a marriage ren­ders himself liable to a heavy or a light punishment according as he acts in good faith or in bad faith.”

“ A marriage with a woman before completion of her iddat is irregular, not void." Again on p. 236 he gives a list of irregular mariages and and includes in that list “a marriage with a woman undergoing iddat."

Case—Law.

Dec. Mad. S.A. 157. Accepting the opinion of the Qauzee-ool-Qoozat, it was held that a marriage between a man and a woman, within her period of iddat consequent upon the death of' her first husband, was null and void. (Macnaghten, p. 566).

Mst. Bakht Bibi v Qaim Din. A.l.R. 1934. L- 907 (Bhide J) It was a suit for restitution of con­jugal rights. The marriage had been c o n t r a c t e d

during the period of iddat. but consummation took place after the expiry of the period of iddat. The defence was that the marriage was invalid. It v' aS held that the consummation of marriage w o u l d not validate the marriage.

Mst. Ruro v Bagh Singh A.l.R. 1935 L a h o r e

23 (Beckett J).

The following observations were made by the learned judge, in the course of his judgment.

“There may be some doubt on the point whether a marriage celebrated during iddat should be regarded as merely irregular or altogether void, although the practice in this province has been to treat such marriages as entirely devoid of any legal

effect, so far as the parties themselves are concern­ed. But an irregular marriage does not acquire \alidity in the absence of a formal dissolution and can be repudiated by the parties at any time, either before, or after, consummation. When it is thus renounced, it has no legal effect on the status of the parties, though it may affect the legitimacy of any issue of the marriage, and also the right of the wife to the payment of dower.

Jhandu v Husaini Bibi I. L. R. 4 Lahore 192It was a suit for the restitution of conjugal rights. The defence was that the marriage was illegal, as it was contracted two months after the death of the first husband of the woman. It appeared that the woman give birth to a child by her first husband after his death but before her second marriage. It was held that the period of iddat of a pregnant widow was four months and ten days, or until the delivery of the child, whichever was longer, and as the marriage was contracted within four months and ten days of the death of the first husband, it was void. The learned judges refered to Md. Yousuf, Vol. i l l . p. 63 ; Hamilton, p. 130 ; Abdul Rahman p. 316 and Wilson (of which no reference is given).I have checked each one of these authorities, and on these pages, they are not even discussing the subject of the iddat of a pregnant woman. I have myself quoted Abdul Rahman in this connection. The judges also quoted Baillie, p. 355, and I have reproduced that passage above which contains the statment that the period of iddat of a pregnant

woman is until delivery even if her iddat is due to the death of her husband. Lastly, they quoted Tyebi?.p. 133, where the period of iddat, in such a case, is given as four months and ten days or until the delivery of the child, whichever is longest/ ' Then, their Lordships made the following observations : — “ It is contended that the Muslim Law requires a widow to observe iddat for four months and ten days, and in case of pregnancy till the delivery of the child, the period fixed being curtailed if the delivery takes place before the expiry of the period of four months and ten days. We are unable to find any authority to support this contention, and none has been laid before us Then, they refer to a sentence from Hedaya which discusses the nature of the iddat o f a woman consequent upon the death of her husband, and to Appendex D of Wilson which merely gives the translation of the Quranic verse 2.30.3 which deals with the iddat consequent upon the death of the husband. Lastly, they relied upon a case reported in 29.P.R.1909, and observed that they agreed with the view taken in that case. fn the result they declared that the period of the iddat o f a pregnant widow is four months and ten days or until the delivery of the child whichever is the longer, and, consequently, they held that the marri­age was invalid. It is submitted that the case was badly presented on behalf of the appellant and, consequently, the decision arrived at was bad in law, so far as the question of the duration of the

period of iddat was concerned. The other point decided by the Court that a marriage held during the period of iddat was void, was, it is submitted, quite correct.

Now if we sum up, the position boils down to this :

Mohit, in discussing the subject of dower, seems to have put, in one group, marriages with a mo - attada, with wife's sister during the iddat ot her sister and with a fifth wife during the iddat of the fourth wife. It might have been due to the fact that he considered these various forms of iddats as similar in nature and in their incidents, and might have been of opinion that the same law was applicable to all marriages which were contracted during any kind of iddat. As I shall show later on, even ancient texts have held fasid a marriage with a wife’s sister during the iddat of her sister or with a fifth wife during the iddat of the fourth wife. But they have done so on other grounds. In these latter cases, the women in question are themselves fitting subjects of marriage, and neithei Q uran nor any Hadis contains any clear prohibition regarding a marriage with them. Mohit does not say how he can explain away the cleat Quranic prohibition regarding a marriage with a mo attada. He gives no argument —at least, none are known to us. His opinion was quoted by the author of Rudd-ul-M uhtar in his commentary only to be refuted by him. Tahtawi (in 1839) has copied the passage either from M ohit itself, or, apparently,

from Rudd-ul-M uhtar. Again, Fawawac Alam­giri itself does not mention this prohibition. Baillie has merely paraphrased Fatawae Alamgiri in English. But he has got his own fixed views on the question of batil and fasid marriages which are based neither upon logic nor upon authority. He argues like this. Every marriage which is not prohibited on grounds of nasab, riza or musa- harat is one in which the bar o f prohibition can be removed in certain eventualities; and since they can be so removed, such prohibitions are not per­manent; and if they are not “ permanent, the marri­age itself cannot be batil: if it is not batil, and .at the same time, it is not sahih. if must be fasid and must have the consequences and the effects of a fasid marriage. This is his line of argument. He takes no notice of the fact that every"bar o f p ro ­hibition permanently prohibits a union with the woman so prohibited. I f the change of circumstances removes the bar, the woman in question emerges out as a new personality and is not the same “ person,” in the eyes o f law, with whom the marriage was previously prohibited. He has sacrificed authority , logic and even morality a t the alter o f consistency, by holding such marriages as merely fasid. Wilson and Mulla say the same thing on the authority o f Baillie. Similarly, Amir Ali holds a strong opinion on this subject. But A m ir Ali never refers to Quran or to other older authorities, in the coi:i se of his discussion of a marriage with a m o ’-

attada. Quran, the ultimate source of Muslim Law. is very clear 011 this point. Not only does it prohibit a marriage with a mo'attada, but it clearly prohibits (2.30.4) even a fixing up of a marriage with a mo’attada during the period of her iddat. (See Text No. II)

Hamilton says “ It is not decent in any person publicly or expressly to solicit or seek connection with a woman under Edit, but it matters not, if this be done in an indirect and an ambiguous manner: yet they should not pass any secret promise of marriage to each other, this being forbidden in Quran.” (Vol. 1, p. 372)

Ibn Abu Zaid also mentions this prohibition. He says, “ A woman may not be sought in marriage during her iddat. but there is no harm in sugges­tions made by complimentary speeches. (Russell and Suhrawardy, p. 31. Text 109).

The question of the marriage of a mo’attada may also be considered from another point of view. The Muslim Law lays down certain rules of conduct which ought to be observed by a mo’attada. No doubt they may be called Rules of Morality and not Rules of Law, because they can not be enforced by a court of law. Still, the existence of these rules, by itself, shows that the Muslim Law does not contemplate a marriage with a mo’attada. They are mentioned in Hedaya.

Hamilton translates them in his Vol. I. pp. 370-5. According to these rules, a m o’attada is not allowed to adorn herself, to use scents, to wear good clothes,

40

to go out of the house except in cases ol urgent necessity. All these restrictions clearly show that, during the period of her iddat. she is to pass the life of a recluse. Her marriage during her iddat will necessarily make it impossible for her to observe these rules.

It may also be mentioned that the Quran lays down an imperative duty to carefully calculate the period of iddat (65.1.1) “ Count accurately their prescribed period.” Now, this precept must have some good reason behind it, and it can only be that the Quran wants that the periods of iddat should not be curtailed, and that the Quranic rules regarding iddat must be observed, both in lettei and in spirit. The very next verse (65-1-2) lays down a very salutary rule which, unfortunately. >s never observed, in acutal practice. It lays down that, on the completion of the period of iddat, the final departure of the woman from her husband s house should be witnessed by two persons who are endowed with justice. With a view to publicise the fact that the woman has become free from the bonds of marriage, the Quran prescribes this mode of formal departure. So long as a divorced woman remains in her husband’s house for the completion of the period of her iddat, her husband is to main­tain her in the same style as that to which he himself is used. (See verses 65.1.6. and 7).

Therefore, under the clear Quranic injunctions, divorced women are to observe iddat, the period of which is to be carefully counted ; they are to

remain in the houses of their late husbands who arelo maintain them during iheir periods of iddat: no proposals of marriage are to be made to them during this period ; they are to depart from the houses of their late husbands, on the completion of their iddats. in a formal manner and in the presence of two persons who must be endowed with justice. It is to be noted that though Quran does not specifi­cally lay down the necessity for the presence of two persons as witnesses of the marriage, yet it pres­cribes, in clearest terms, the necessity of the pre­sence of, not only of two persons, but of two just persons, to witness the final and formal departure of the divorced women from the houses of their husbands on the completion of the periods of their iddats. In view of all these verses, Quran must be taken as laying down that the mo'attada should lead a life of utter seclusion, far away from the temptations and allurements of a married life. It is impossible to reconcile these provisions of the Quran with the conception of their re-marriage during their iddats.

One very pertinent fact emerges. Authorities like Amir Ali, Baillie etc, never refer to Quran. In fact, they can not do so, because their views are clearly contrary to the express provisions of the Quran. But the exponents of the other view always argue from Quran and make it the star­ting point of their arguments A Quranic verse can only be repealed by another Quranic verse, and

we find innumerable instances of such repealing verses in the Quran. In fact it proclaims itself :—i g l - -. j I I 4 - U 1 o i l j ! a _ j I ^ v - i — > L j

“ None of our revelations do we abrogate but we substitute something better or similar to it.”1

11 Now I shall take up the case of prohibi­tion upon the marriage of one woman on the ground that another woman is observing iddat.

Such cases are three in number.(1) Marriage with a fifth wife when the fourth

wife is in iddat.(2) Marriage with a fourth wife when a person

who already has three wives, co-habits with a fourth woman under a nikah-e-fasid or under a shubh.

(3) Marriage with the sister of a divorced wile during the period of the latter's iddat.

These three cases o f prohibition are not m e n t io n ­ed either in Quran or in any Hadis. They w ere introduced by fo llo w er s of the Hanafi S c h o o l by way of extreme caution, or for the purpose of improving the morals of the people. Imam S h afe i does not agree w ith their v iew s.

Hedaya describes this conflict of view in connec­tion with the case of a marriage with a wife s sister during the iddat of her sister. 1 will give its translation by Hamilton because it seems to be a good explanatory translation of the p a ssa g e except at one place which T shall point out. (Text 90).

" I f a man repudiate his wife, either by a com­plete or a reversible divorce, il is not lawful for him to marry her sister until the expiration of her Edit, —Shafei maintains that it is lawful, because by either of those two forms of divorce the former marriage was completely dissolved, in so much that if a man were to have carnal knowledge of his re­pudiated wife during her Edit, knowing the illega­lity of the same, he would be liable to the punish­ment of whoredom.—To this our Doctors reply, that whatever the nature of the divorce may have been, whether reversible or complete, the marriage with the first sister does still, in fact, continue during her Edit, in virtue of the continuance of several of its effects, such as maintenance and custody and inability to marry another man."

(Note. Here Hamilton leaves out the transla­tion of one phrase which means “ and the effect ofthe 'Qalai’ (that w'hich seperates the parties i.e. talak-e-bain) will be delayed, and for this reason the nikah may be said to continue.” )

Hamilton’s free translation continues as follows :

“ Neither d o es it appear, in the b o o k o f d ivorce, that any pun ish m en t for w h ored om is specified in the ca se o f the h u sb an d hav in g carnal co n n ection with his repudiated w'ife w ith in the term o f her Edit; a lth o u g h , a ccord in g to the B ook o f Punish­m ents, he w ouU i incur it, because, by th e act o l d ivorce, the h u sb a n d ’s right o f co -h a b ita tio n is d isso lved and, co n seq u en tly , any su bseq u en t

cohabitation with her would bear the construction of whoredom; but yet his other rights are not dissolv­ed (as was above observed) ; wherefore, if he were to marry the second sister before the expiration of the former’s Edit, it would amount to a marriage with two sisters at one time, which is forbidden.

On p. 26, Hedaya writes :—(Text 91).“ If a freeman gives an irrevocable divorce to

one of his four wives, it is not lawful for him to marry a fourth, until after the expiry of the iddat of the divorced one. In this, Shafei holds a con­trary view, similar to that regarding the marriage of a sister during the iddat of her sister.’'

Thus, it will be seen that there is a conflict of opinion amongst the two great pillars of M u slim Jurisprudence. It will be nothing short of imper­tinence to open one’s lips against authorities of such a great eminence. But in a spirit of humility, it may be pointed out that the arguments of the Hanafi School are comparatively weaker than those o f Shafei. The Hanafis bring forward two argu­ments.

Firstly, that the first marriage still subsists in in certain respects e.g. in respect of maintenance, custody and prohibition against a second m arriage of the woman. My most respectful submission is that these three facts have no bearing upon the main question which is whether the first marriage still subsists :

(A) As regards maintenance, I shall submil that marriage and the liability to pay maintenance

have no necessary inter-connection with eacli other. Maintenance may he payable where there lias been no marriage at all ; and it may not be payable even where a marriage, in fact, does exist. 1 will illustrate my statement by examples :

(a) Maintenance is payable not only to a divorced woman under certain circumstance, but it is also payable to an infant child, to a father, to a mother, and also to indigent grand-father and grand-mother, even if they happen to be kafirs. Hamilton, Vol. I, p. 411. Similarly, it is the duty of a person to provide maintenance for all his relations, males or females, children or adults, who are related to him within the prohibited degrees. Both parents must provide maintenance for their adult daughter as well as for a disabled adult son—father paying two-thirds and the mother one-third, of such maintenance.

Thus, maintenance is payable not only on the ground of a matrimonial alliance, present or past, but, on other grounds as well. It is payable not only by a male, but by females also. Therefore the mere payment of maintenance by a male to a female cannot be attributed solely to a relationship created by marriage.

Again, it is payable by a husband to his wife even after her iddat is over while she is nursing his child. See Quran 2.30.2. (Text 24).

“The mother shall give suck to their offsprings for two whole years, if the father desires to

complete the term, but he shall bear the cost of their food and clothing on equitable terms.”

Therefore, if for this reason, the husband has to pay for her food and clothing (i.e. maintenance) for a longer period, it cannot be said that it can have any necessary bearing upon the status ol the parties as husband and wife.

Hedaya itself lays down (see p. 407, of Hamilton. Vol. I.) “ No maintenance is due to a woman after her husband’s decease, because her subsequent confinement (during the term of Edit, in conse­quence of that event) is not on account of the right of her husband, but of the Law— the Edit of widow­hood being merely a religious observance.' This reason for the non-payment of maintence to the widow, during the period of her iddat, does not seem to be sound because the right of maintenance is given by Quran to a woman who is observing iddat whether on divorce or on the death ot her husband. The order regarding both these cases is the same and is to be found in verses (65.1.1. and 65.1.2). Both classes of m o’attada are included in the pronoun 6*, which is used in the Quran. Therefore, it is not possible to make any distinction between them. Secondly, if the Edit of w idowhood is merely a religious observance and is not on account of the right of the husband, the same must be said about the other kind of iddat also (i.e. one on divorce), because both kinds of iddats have been prescribed by the use of exactly the same words

iJU (restrain themselves). It is immaterial

that in the cne case tl'e prescribed period is L'-* J Axij ' (four rrcnts ard Ur, ca>s), white. in the other, it is £ J j ! (three monthly courses). This difference in the length of the prescribed pericds. cannot affect the nature c f the iddats. Undoubtedly, both kinds of iddat have been prescribed by Gcd. In fact, the reason why a widow dees not get any maintenance, during her iddat, out of the assets of her late husband, is that 1 er husband, cn his death, has ceased to be the owner cf the pioperty which he had owned in his lifetime. His cwr.eiship over his property, as well as his enwership over his wife (by nikah), have both absolutely terminated on the occurrence of the all-important event called his death. The property he once possessed, is now possessed by others who hold it in their own rights. They do not hold it as representatives of her deceased husband. They are under 110 personal obligation to maintain the widow of the previous owner. The w'idow herself is cne of such new owners. Since, after the death of her husband, there will not exist any property over which her deceased husband can have an) rights of ownership, there will be no fund out of which she can be paid her maintenance. The new owners need not maintain her. In this respect their position will be just like that of a bonafide purchaser for value of the property from her husband who purchases it without notice of any incumbrance and will, consequently, get it free from all incumbrances.

41

(b) The reverse case is where no maintenance is payable even if there has been co-habitation and the w om an has to observe iddat. It may happen in very many cases e.g.

(1) Wheie the separation originates from the woman herself or becomes obligatory on accountof anything which can be * j \ uJ . ue im p u ted to her as afa u lt o r as a cr im e, e .g her ■

, , uer b e c o m in g an a p o s ta te ,or h er h a v in g sexu a l in te r m ..- j u u ■ 1Course or d a llia n c e w ith

H Which « « « her m arriageW her husband ls ' >Pso facto , d isso lved .

(2) Co-habitation with > -c ja shubh. Here, the worn S " 6 Underiddat i f the act w as not H ? " haVe ° bSerVek n ow led ge o f her b ein e th -r* the m a" w ith the

™ t , 8 he Wlfe another.(3) f h e sam e rule

another’s m o ’attadah unrl ° ' le c ° - hab its w ithl d \ n • er a m istake o f fact.(4) N o m a in ten a n ce ic

who has been married K payable to a woman ( \ ,A . A y an invalid marriage,v ) (Amir Ali Vol t trity o f R udd-u l-M uhtar Vo i n ' °" “ “it be payable to her (after L P' ' ° 65 )’. n ° r W'"her husband, either vai., + ^ separatlon fromduring the period of her iddaTcwhTchtTbe

Therefore, it will be seen that there is no such necessary inter-relation between a right of main­tenance and marriage that the presence or a b s e n c e o f the one may be cited as an argument for the

existence or non-existence of the other. There­fore, the fact that the man has to pay main­tenance to the woman can be no valid ground for holding that, for this reason, the nikah which has become defunct, still exists in some respects.

(B) As regards the second ground of the Hanafi School-—the custody of the divorced woman—there are two answers to this argument.

Firstly the word “custody” has created the diffi­culty. Custody is of two kinds. Custody of a wife, and the liability of the husband to provide apartment for the residence of the divorced wife during the period of her iddat. The Hanafi lawyers are trying to argue that because the ex-husband has the custody of his divorced wife, the matrimonial tie ought to be considered as still subsisting in certain respects At the same time, they stress that the custody of a woman, qua a wife, should be for the “ purpose of enjoyment.” Here, enjoyment is impossible. A husband cannot even approach his wife after a talak-e-bain. Qazi Khan points out that if he co-habits with her after a talak-e-bain, knowing her to be unlawful to him, he will be committing zina and will be liable to hudd.

Secondly, her continued residence in her ex- husbands’ house is necessary because he has to meet her actual expenses. Tf she were living separately, the husband could not legitimacy be made to defray her expenses.

(C) The third thing mentioned, in this connec­tion, by the Hanafi lawyers is the fact that she is not allowed to marry another person within the period of her iddat and, therefore, her marriage with the man mast be deemend to exist, in some respects. The short answer to this argument is that in some other cases also a woman is not allowed to marry, but not even a semblance of marriage is supposed to eKist between her and any man e.g. (1) Qazi Khan says, on p. 169. (Text 35).

It is not lawful for an opostate woman to marry any one. Her first nikah with her Muslim hus­band is dissolved by her apostacy. So that, in her case, the prohibition to marry anyone is absolute and perpetual. According to Muslim Law, she cannot marry even a kafir.

An idolatress is not lawful to a muslim. She

(apostate)6r? laWfUl t0 kafir CXCept a murlid

Again, if there is a fasid marriage and the parties separate after co-habitation, the woman has to observe iddat and cannot marry another person until the period of her iddat expires. But no one maintains that, in this case, the fasid marriage will be deemed to subsist in any respect.

^ ese reas°n s , it is humbly suggested that e la ei view seems to be more in c o n so n a n c e

with reason.

, discussed the arguments advanced bythe Hanafi School I mnvuuui, i may urge one more pointagainst their view.

Every system of law regulates marriage in two ways, positive and negative. By way of illustration, I may point out that the Hindu Law lays down that one may marry outside his sapindas but inside his gotra. Quran also adopts the same procedure. On the negative side, it lays down specifically what classes of women one may not marry. After finishing the enumeration of the prohibited women, it gives a general order that, with the exception of these prohibited women, all others can be lawfully married. (See Text 5). Thus., one may lawfully marry any woman who does not fall within the prohibited categories which are specifically mentioned in the Quran. To hold that one may not marry a particular woman (who does not belong to any of these prohibited categories) amounts, in effect, to deprive one of a right granted to him by God.

Again, in every system of jurisprudence, (includ­ing the Muslim Law, as expounded in clear Quranic injunctions), every prohibition upon marriage with a particular woman is invariably based upon some sort of relationship which exists between the man and the woman. The prohibition attaches to the woman because of some incapacity which is attached to her own person and is, consequently, imposed upon grounds which are personal to her. It cannot be imposed vicariously. The Hanafi lawyers have gone to the extreme in this matter, e.g., according to them, a person cannot co-habit with his own

wife during the period of her sister s iddat with whom he has had sexual intercourse under a fasid marriage or even under a “ Shubh” i.e. when he co-habited with her under the impression that she was his own wife. In such a case, the obligation which is imposed on her to observe iddat, is under­standable. It is imposed for the ascertainment of a possible pregnancy. But the rule that, during her iddat, the husband should not co-habit with his own wife is one which cannot be explained and defended on any rational ground. Besides this, the rule contravenes the clear, dictum of Quran which is mentiond in 2.28.2.

“ Your wives are as tilth into you, so approach your tilth when and how ye will.” (Text 23).

Just before this verse, there is the verse 2.28.1. in which the Quran prohibits co-habitation with one’s own wife when she is having her menses ; but, after their purification, it permits them to be fully enjoyed by their husbands. The word used is

which, as Abdulla Yousuf Ali points out, on p. 88 of his translation of Quran, is a comprehensive word and refers, at once, to time manner and place.

If God wanted to prohibit co-habitation with one’s own wife while here sister was in her iddat, God would have included this case also in this verse (2 .2 8 .1 .) . Since Quran does not p r o h ib i t a co-habitation with a validly married wife, to impose such a prohibition will, in fact, amount to taking

away from the husband the permission which has been granted to him by these verses, i.e. by 2.28.2 and 4.4.2.

Now, these are the clear words of Quran. On their proper interpretation, there can only be two alternatives.

(1) Either it must be held that wives, for the duration of their sister’s iddat, cease to be wives. In that case, the further assertion must be made that, on the termination of their sisters’ iddat, their status as the wife of the man will “ spring up” , de novo. This will mean that there can be a temporary cessation of “wifeship.” [t can exist, then cease to exist and then will spring up again, automatically, without any relation to any act done by her or with reference to her. This position is untenable and nobody expressly takes it. But this is what the Hanafi view upon the point, leads to.

It may be argued that her status as a wife remains intact and what is prohibited is only a sexual intercourse with her during this interval, and nothing more. But this argument may be answered in this way :

In view of the above Quranic verse ( 2.28.2), no human authority can make unlawful what God has made lawful. God Himself has, in the previous verse (2.28.1.), prohibited intercourse with one’s own wife during her menses and immediately after that verse, comes this general permission to have sexual

intercourse with one’s own wife, whenever a n d wherever one likes. According to all sound rules o f construction, the two verses should be read together, and if they are so read together, the only possible construction of these two verses is that a co-habitation with one’s own wife is always permissible except in the one case specifically m en­tioned in 2 .2 8 .1 . T h e maxim of law In c lu s iv e unius exclusio alterius” applies to this case with full force.

If God wanted to prohibit intercourse with one’s own wife in this case, as well as during her menses, He would either have included it in the first verse or He would not have phrased the second verse in such general terms as He has done.

Again, one more practical difficulty arises. Suppose a husband, in contravention of the rule, (that a husband can not co-habit with his wife while her sister is in her iddat consequent upon her co ­habitation with him under a fasid marriage or under a “ shubh” ) does co-habit with his wife while her sister is in her iddat, and a conception takes place and a child is born. W hat will be the status o f such a child? If he is to be held illegitimate, then these difficulties arise : —

(1) How can the illegitimacy be proved by showing that the conception took place during the period of the sister’s iddat. Every sound law should be such as can be enforced by courts o f law by penalising those who violate its provisions. C ourts

can do so only on the basis of the evidence on the record. How can this evidence be pro­duced? The result will be that, in practice, this law cannot be enforced.

(2) The period of iddat cannot possibly last longer than three months. Ordinarily, the period of gestation is 9 months. So that the boy will be born, in any case, 6 months after the cessation of the sister’s iddat. According to Shera, if a child is born 6 months after the marriage of its parents, its paternity will be fixed upon the husband of its mother. So that, under this rule, the child will be deemed to be legitimate. The result is that the child must, in any case, be legitimate.

(3) The parties will not be liable to hudd, in any case, nor will the validity of the marriage be affected in any way. There will be neither a separa­tion between them, as in a fasid marriage, nor will there be any obligation to contract a fresh nikah. If neither of these consequences follow and the resulting child is, also, necessarily, legitimate, then, where does the difference lie between such a case and the one in which there is no such prohibi­tion upon the sexual intercourse. At best, this rule may be called a Rule of Morality (which courts of law do not enforce) and not a Rule of Law.

The question of a marriage with a wife’s sister during her iddat may come up before courts. The other case of marrying a fifth wife during the

42

iddat of a fourth wife is not likely to accur, in modern times. In the first case, I would humbly suggest that a distinction should be made between cases where the divorce is bain and those where it is revocable. Tf it is revocable, the marriage with the wife can not be deemed to have been totally dissolved. All jurists agree on this point. Therefore, the marriage with her sister during the period of her iddat should be deemed to fall within the prohibition which is imposed by Quran. If, on the other hand, the divorce is irrevocable, then, according to the Hanafi School, she cannot be married until the expiry of her sister’s iddat, because, in such a case, the marriage, according to them, will be deemed to exist, in some parti­culars ; whereas, according to Shafei a marriage with the divorced wife’s sister, during her iddat, will not constitute an unlawful conjunction and will be lawful. Under the Indian law, every Sunni Muslim will be deemed to be a Hanafi, unless the contrary is proved. In law, there is no absolute prohibition upon a Hanafi following Shafei doc­trines in some specific matters. Fatwas have been given by Ulemas to that effect. For instance, on the question of the period during which a woman should wait before her re-marriage with another person when her first husband is un- traceable, the Hanafis say that she should wait for 90 years ; whereas, Malik and Auzai say that she should wait for 4 years only. On this question Jamai-ur-Rumuz writes.

“ Malik and Auzai say (she should wait) for four years. So she can marry after this period. If, in case of necessity, fatwa is given according to the opinion of Malik {i.e. according to the opinion of others, in preference to that Abu Hanifa, and this will, by necessary implication, include the opinions of Shafei and Hambal also) there is no harm, as far as T think.”

Ibn Abu Zaid gives the views of the Maliki School. He says “ Where a husband is missing, a delay of four years is allowed, dating from the day when the matter is brought before the court, and the termination of the search for him. The woman shall (then) observe a retreat of the same duration as after a decease; thereafter, she may marry if she pleases.” (Text 110) Russell and Suhrawardy pp.30-1.

In Majma-ul-Fatawa, by Abdul Hai, Vol. I, p. 290, a fatwa to his very effect is given, on the authority of Dur-rul-Mukhtar and Rudd-ul-Muhtar. Therefore, I conclude from this that it will be per­missible for our Qazis (i.e. our judges) to decide that it is lawful for a man to marry a woman during the iddat of her sister whom he has divorced by a talak-e-bain. They can do so on the basis of the opinion of Shafei, if they think that his opinion is more in consonance with logic and reason. I personally think it to be so and, therefore, I bring this question into prominence for the adoption of the better of the two views.

CONCLUSION.

From the above discussion, it will appear that it is not correct to make any distinction between the different classes of women prohibited by Quran. The Quran has specifically prohibited marriages with 19 classes of women. All o f them stand on the same level, so far as the unlawfulness of a marriage with them is concerned.

As regards marriages which are contracted in the absence of witnesses, it may be said that, on the general principles of Quran, such marriages are unlawful. It will lead to any number of false cases if this salutary rule is not accepted : s an integral part of the Muslim law of marriage. The validity of this kind of marriage must be deter­mined on grounds of public policy and that demands their discouragement.

THE E N D

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A ck n ow legm en t o f paternity o f illigetim ate children p. 257. A nim us delicti p. 52.

A urangzeb, Em peror pp. 34, 172.

B io logica l and legal paternity, d istinction between pp. 180-82. First m ay exist w ithout the second, illustration p. 181. Second m ay exist w ithout the first, illustrations p. 181-82.

C om m entaries in M uslim Law. Character o f p. 70-1.

C onversion to Islam :

(a) o f a m an w ho had tw o sister in marriage pp. 93-4

(b) o f a married w om an, its effect on her marriagep. 223-4, 257-61.

C orpus Juris C ivilis p. 153.

Divorce :

N um ber o f p. 8.

First and second divorces, Quran pp. 8, 263.

C onsequences o f— first and second divorces, H edaya 264, 301 A bdul R ahm an 301, Quran 275-6,— third divorce, Quran pp. 8, 263, A bdul Rahm an 268, A bu Zaid 265, A lam giri 265, Am ir A li 267, Baillie 266, H edaya 264, 301-2, M ulla 267, W ilson 268-9.

Prescribed tim e, should be given at p. 291.

Q uranic rule, is it injust to w om en p. 276.

M arriage w ith M oh u llil, criticism o f W ilson 277-8; A nsw er to it pp. 278-9.

D ow er :

D efin ition and nature o f, D urr p. 122, R udd p. 122-3, Q azi K han p. 122.

C ustom ary, when due, pp. 112, 122, 125, 126.

W hen no dow er payable :

(1) S odom y with or k issing a w om an or to u ch in g herwith desire p. 122

(2) N ik ah-e-fasid , if no actual co -h a b ita tio n pp. 112, 123

(3) R etirem ent with a w om an in her m en ses p. 123.

(4) M arriage with tw o sisters by on e A q d , A y n ee p. 127Inaya p . 127.

Factum V alet, doctrine o f pp, 81, 155

W hether applicable to M uslim m arriages p. 258.

G roup marriages p. 2, 3.

H indu Law o f M arriage p. 333.

H indu M aths p. 3.

Hudd :

A nim us delicti, necessary for p. 52.

liability to, and legality o f m arriage, not in ter-d ep en d en tpp. 184-6.

M arriage with m ankuha and m o ’attada, w hen hudd to beim p osed p. 118.

M arriage w ith a prohibited w om an , w hen no hudd accor­ding to H anifa and his d isc ip les p. 117.

N o hudd in cases o f dou b t p. 29.

N o hudd though act is zina pp. 28, 29-30 , 47-8 , 116-17, 184.

N o hudd in Shubh-fil-fail and Shubh-fil m ahal, w h en , 116,184.

N o hudd in Shubh-fil-A qd, H anifa and Shafei, con flict o f view s p. 60-65 criticism o f H an ifa ’s v iew p. 65-7 .

N o hudd if co-habitation under sanction o f (a) M arriage (b)ow nership (c) Shubh. p. 50.

N ot dropped if adulterer subsequently marries or purchasesthe adultress pp. 87-8.

Prescribed by Quran (flogging) p. 48, Hadis (Rajm ) p. 49.

W hen inflicted on one party on ly p. 31.

Iddat.

D efinition o f— Durr p. 109.

Final departure o f m o’attada from husband’s house, must be in presence o f two just w itnesses p. 322.

H usband can take her back during iddat in revocable divorce pp. 300-1.

N o personal decoration during iddat pp. 321-2.

N o proposal o f marriage during iddat pp. 8, 321

N o t obligatary :In marriage w hich is batil p. 114, with Kafir p. 118, with

m ankuha or m o’attada pp. 115, 118.

W hen M uslim a marries and co-habits with Kafir p. 113.

O bligation to observe iddat and legality o f marriage, not inter­dependent. pp. 186-7.

O f a w idow , no m aintenance payable pp. 328-9.

Period o f, to be counted accurately pp. 2 9 1 ,3 2 2

Periods o f :(a) o f a divorcee, Quran pp. 7, 263, 289, Qazi Khan p. 294,

A bu Zaid pp. 7, 298, Am ir Ali 294. (H is view inaccurate p. 294-5)if divorced before intercourse pp. 290, 299. if pregnant, pp. 290, 297, 299 •

(b) o f a w idow , Quran p. 8, 290, Abu Zaid p: 299, generalp. 295; i f pregnant, pp..297-8-, Quran p. 290, A bu Zaid p. 299, H edaya pp. 294-5, Qazi K han pp. 295, 298, Am ir A li pp. 294, 298, 299, Baillie p. ’299, M ulla p. 300, -Rahman p . -300, W ilson-p . 300; -

2.28.2 pp. 292, 334, 335

2.28.5 p. 262

2 .28 .6 p. 263

2.28.7 pp. 7, 9, 263, 289, 303, 304

2.29.1 pp. 8, 10, 263

2.29.2 pp. 8 ,9 , 263

2.29.3 p. 264

2.30.1 p. 264

2.30.2 pp. 292, 327

2.30.3 pp. 8, 9, 290, 303

2.30.4 pp. 8, 290, 321

2.39.1 p. 240

2.39.2 p. 240

4.1.3 pp. 8 ,9

4.3.5 pp. 6, 9

4.3.8 pp. 7 ,9 , 10, 11, 12

4.4.1 pp. 7, 9, 11, 1 2 ,9 1 ,9 6 , 173,251

4.4.2 PP. 7, 9, 1 1 ,96 , 1 9 5 ,2 5 1 ,3 3 54.7.1 p. 12

5.1.4. p. 12

33.6.9 pp. 290, 297

65.1.1 pp. 291, 322, 328

65.1.2 pp. 291 322, 328

65.1.4 pp. 290, 303

65.1.6 pp. 2 9 1 ,3 2 2

65.1.7 pp. 2 9 1 ,3 2 2

Q uranic verse can be repealed only by another Q uranic verse pp. 323-4.

Q uran’s interpretation by com m entators, m ust it b e fo llo w ed by courts pp. 152,

Khilwat-e-Sahiha :

Definition, Hedaya p. 296, Qazi Khan p. 297.

M akes iddat obligatory in sahih marriage p. 297, but not in fasid marriage p. 123

M aintenance :

O f divorced wom en, during iddat p. 291.

If pregnant, period increased till delivery pp. 291 ,292 .

If suckling child, period increased for such period pp. pp. 291, 292, 327-8.

Liability for, independent o f marriage pp. 326-31.

Payable to other relations besides wife p. 327.

Payable to divorced wife som etim e even after expiry o f iddat p. 328.

N ot payable :

in som e cases o f co-habitation though woman has to observe iddat p. 330.

to w idow during iddat p. 328.

Hedaya’s reason for this rule p. 328.

real reason for it pp. 328-9.

o f m o’attadah by her ex-husband, p. 331.

M arriage :

A postacy, effect on, Abu Zaid p. 206.

Batil and fasid marriage no distinction am ong early jurists,

Fath p. 127-8, Jamai-ur-Rumuz p. 128, Lubab p. 69 M absut p. 168, M ajma-ul-Anhar p. 68, Qazi Khan p. 68, Rudd pp. 69, 115, 245, 308.

Later jurists draw a distinction pp. 72.

R udd makes distinction between them in matter o f iddat only pp. 69, 115, 245, 308.

Batil, D efin ition p. 69.

Batil, no iddat in p. 114.

Batil, no consequences unless consum m ated R udd p. 114, Sharhe V iqaya p. 126.

C o-hab itation with w ife, alw ays perm itted by Q uran, pp. 292. 334-5 except during m enses, pp. 292, 334.

C ustody o f m o’attadah, no argum ent for con tin u ity o f

marriage p. 331.

D ivisions o f

(a) Sunni Law, Sahih, Fasid. Batil p. 151, 186.

(b) Shia Law, Sahih, Batil.p. 51.

Fasid M arriage :

D efinition p. 69.

Instances of, Inaya p. 127, Zakhira p. 128, Jam ai-ur- Rum uz p. 128.

Legal incidents of, p. 83.

Origin o f the term pp. 82-3.

Theory regarding origin of, pp. 82-3.

When no legal consequences flo w from it p. 126.

Fataw ae A lam giri, does it reject the notion o f batil m arriages pp. 33-4.

H adis im poses the duty to marry pp. 5-6.

Ignorance o f law, effect on marriage p. 51.

Law o f M uslim m arriage com plicated by :

(a) doctrine o f Shubh. p. 67.

(b) character o f M uslim jurists pp. 69-70,

(c) practice o f writing com m entaries pp. 70-1.

(d) questions o f hudd, dow er, iddat, m ain tenance and legitim acy o f children p. 183.

L egality o f m arriage and liability to hudd, n o ” necessary inter-connection pp. 184-6.

M arriage during Iliram p. 38.

M arriage o f an apostate p. 332

M arriage o f an idolatress p. 332.

M arriage o f a M uslim a with a Kafir p. 214-15.

M arriage o f a zani or a zania pp. 41-2.

M arriage proposal not to be m ade to

(a) a m o’attada, Quran p. 321, H am ilton p. 321, A bu Zaid p. 321.

(b) a pregnant w om an p. 286.

(c) a married w om an p. 257.

M arriage with a m ankuha and a m utallaqa, com parision pp. 279-84.

M arriage with a m ohullil, valid pp. 264-5,

Its criticism by W ilson pp. 277-8.

A nsw er to this criticism pp. 278-9.

M arriage with a slave girl upon a free wom an p. 41.

M arriage with o n e’s own slave p. 41.

H ow it can be effected pp. 77-8.

M arriage with tem porarily prohibited w om en, how it cam e to be called fasid pp. 81-2.

M ulla’s view on void and irregular marriages pp. 19-20.

N ature o f, in M uslim Law :

(a) an Ibadat, p. 5.

(b) a m eritorious act, Hadis p. 5-6.

N o t directly enjoined by Quran p. 6.

Period o f w aiting if husband untraceable, Jam i-ur-Rum uz pp. 338-9; Abu Zaid p. 339.

Prohibition regarding marriage, can they be divided into Perm anent and Tem porary pp. 83-9, 208-13

Quran im poses no positive duty to marry p .5.

R e-m arriage w ith w om an divorced by la ’an A m ir A li p. 38.

R estraint on m arriage o f m o’attada, does it m ean con tin u ity o f her previous marriage p. 332.

Sunnat M uvakkada p. 6.

U ncertain ty o f legality o f marriage, un law fulness to prevail Ibne Arabi p. 83.

V alid ity o f marriage, whether .depends upon co-h ab ita tion am ounting to Z ina p. 14.

M arriage with H am ila (pregnant woman).

Arises in three ways p. 285.

Invalid if pregnancy lawful, Am ir A li, pp. 287, 288; B aillie p. 286-7; Hedaya p. 286.

U nlaw fulness arising from pregnancy pp. 285-8.

Valid if pregnancy due to Zina, Am ir A li p. 987, Baillie, p. 286, H edaya p. 286; Qazi Khan pp. 285-6.

Abu Y usuf differs from H anifa and M oham m ad; A m ir A li P- 87-8; Bailie p . 286, H edaya p . 286 Q azi K han pp 285-6; Rudd pp 287-8.

Fatwa according to H anifa and M oham m ad; A m irAh p. 287.

H usband should n o , co -hab i, until! deliveryaillie p. 286; Hedaya p. 286; Qazi K han p. 285.

u n less the husband h im self is the father o f the ch ild Am ir A li p. 288.

M arriage with M ankuha (married woman).

C ase Law p. 255-61.

C o m p a r iso n with a marriage w ith a m utallaqa pp. 279-84.

H ow this bar can be rem oved p. 76.

Kafira adopts Islam , how her previous m arriage w ith kafir d isso lved H edaya p. 258, C ase-law p. 258-60.

P roh ib ition on m arriage w ith— analytical discussion pp. 208-13, A m ir A li p. 253, Baillie p. 254, Fataw ae Alam giri pp. 135-6; 253; M acnaghten pp. 255, 256; M ulla pp. 254-5. Qazi K han pp. 251-2; Quran p. 251; Rahm an p. 254, Razi p. 251, Rudd. pp. 115, 118, 252-3.W ilson p. 254.

If m arriage with second husband only consum m ated, will it be validated on ground o f public policy, Amir A li pp. 253-4.

M arriage with m o’attada :

Bar o f m arriage, h ow can it be rem oved p. 75.

C ase-law pp. 316-19.

C u stod y o f m o ’attada, no argum ent for continuity o f her m arriage p. 331.

C u stod y o f m o ’attada, by her ex-husband only for purpose o f m aintenance p. 331.

L egality o f, A bu Z aid p. 308-9, A lam giri p. 135, 253, Am ir Ali p. 310-11, criticism o f A m ir Ali pp. 311-15; Baillie pp. 309-10, H edaya pp. 301-2, 307, M ulla p. 316, Q azi K han pp. 251, 306-7; Quran pp. 289-94, 303-4, R ahm an p. 302; 315; Razi pp. 304-5, 306; R udd pp. 115, 118, 307-8, Tahtavi p. 117-8, W ilson p.309 G eneral d iscussion on its legality pp. 319-24.

M arriage proposal to a m o’attada, not permitted p. 290 ,Abu Zaid p. 321, H am ilton p. 321.

M arriage w ith a m o’attada or m ankuha, on the sam e level, A lam giri pp. 298, 309, Q azi K han p. 307; Rudd p. 307.

M arriage w ith a m o’attada, R udd pp. 115, 118.

A n alysis o f R u d d ’s view s pp. 118-19.

M o ’attada n o t to decorate herself during iddat pp. 321-2

M o ’attada perpetually prohibited i f married and enjoyed during iddat. A b u Zaid p. 308,

R estraint on re-marriage, does original m arriage con tin u e p. 332.

V arious periods o f id d at pp. 294-300.

M arriage with M ushrika :

Bar o f prohibition, how rem oved p. 77.

Bar o f prohibition and change o f status and personality , pp- 209-13.

Bar o f prohibition must be rem oved before m arriage with wife’s sister. Durr p. 229.

Case-law pp. 222-225.

Co-habitation with a mushrika forbidden, A bu Zaid pp. 205-6; Baillie p. 208.

Conversion to Islam, should it precede nikah pp. 200-4 .

Marriage with M ushrika. A lam giri pp. 136-7, 205, A m ir A li pp. 216-17, 219, 220-1, 221, critical analysis o f his view pp. 217-22, Baillie p. 207, critical analysis o f Bailhe’s views pp. 207-8, criticism o f Baillie pp. 208- 13; Hedaya p. 205; Ibn Abu Zaid pp. 205-6. M ajm a- ul-Falawa, p. 220; M ulla p. 216, Q azi K han p. 205, Quran pp. 7, 200, Quranic phraseology, exam in ation of, pp. 201-5, Quran not discussed by A m ir A li p. p. 222 , Rahm an p. 207; R azi, p. 200; R udd pp. 113,118, 219, 220, Tahtavi p. 117 , W ilson pp. 206-7: Y u su f p. 214.

M arriage o f a m uslim a with a kafir, both unaw are o f p roh ib i­tion pp. 214-5.

W hether proh ib ition political in nature pp. 225-6, A m ir A li p. 225, Quran p. 226,

M arriage with two sisters :

(1) A u th orities— A lam giri pp. 132-5, A m ir A li pp. 140-2, A y n ee p. 127, D urr p. 108, 229; F ath , p. 127, H ad is p. 91, H ed aya pp. 100-104; Tbne A rabi, p . 123;

Inaya p. 127, K ifaya pp. 100-104, M ac, p. 138 j

Qazi Khan pp. 104, 105, Quran pp. 91, Rahim p. 139 Rahman, pp. 138-9, Razi pp. 91-99, Rudd pp. I l l , 120. 121, Saksena, p. 139, Tahtavi pp. 117-18.

(2) C o-habitation :

(a) with w ife’s sister under a Shubh, consequences, Qazi Khan pp. 104-5.

(b) with slave girls who are sisters, Razi, p. 93.

(3) General discussion pp. 208-13,

(4) If married together, both batil Aynee p. 127, Durr p. 108,Fath p. 127 Ibne Arabi p. 123, Inaya p. 127; Mac p. 138, Qazi Khan p. 104 Rahman pp. 138-9; Razi pp. 92-3, Rudd pp. I l l , 120, 121, Tahtavi pp. 117-8.

If married successively and

(a) Priority known, first valid second batil. Aynee p. 127, Fath p. 127; Ibn Arabi p. 123, Inaya p. 127, Qazi Khan p. 104, Rahman pp. 138-9; Razi p. 93, Rudd pp. I l l , 120, 121.Even i f the husband co-habits with the second only, Qazi Khan p. 105, Rahman pp. 138-9.

(b) Priority unknown, both invalid M ac p. 138; Rahman pp. 138-9.

Consequences of, Hedaya pp. 100-101; Durr p. 108.

Jf one sister unlawful, marriage with the other valid, Rudd,

p. 1 2 1 .If one sister M o ’attada, marriage with the other valid, Rahman

pp. 138-9.M arriage with two sisters, how the husband can later marry

either, Qazi K han, p. 105.

M arriage with the sister o f an enjoyed slave-girl, consequen­ces, H edaya pp. 99— 101.

M arriage o f a kafir with two sisters, effect o f his conversion upon his marriages pp. 93-4.

H anifa differs from Shafei and Razi pp. 93-4.

Sum m ary o f Razi’s views pp. 96-9.

Sum m ary o f H edaya and K ifaya pp. 100-4.

Summary o f authorities pp. 187-196.

M arriage with M utallaqa (262-284) :

Case Law pp. 269-74.

Consequences o f a third talak, A bu Zaid p. 265. A m ir Ali p. 267; Baillie p. 266-7; Fataw ae Alam giri p. 137, 265, Hedaya p. 264, M ulla p. 267, Quran p. 263; R ahm an pp. 268-9; W ilson p. 267-8.

Definition o f M utallaqa p. 262.

Com parision o f conditions legalising m arriages w ith a m an­kuha and a mutallaqa pp. 279-83.

Marriage with a mutallaqa, batil or fasid p. 279.

Criticism o f Baillie’s views pp. 283-4.

Marriage with a M ohullil. valid p. 265.

W ilson’s criticism pp. 277-8.

Answer to W ilson’s criticism pp. 278-9.

M ohullil and M ohlil-la-hoo, prophet’s curse upon H edaya p. 278.

Quranic injunctions regarding talak pp. 262-4

Summary o f Quranic verses, pp. 275-9

M arriage with a woman during her iddat (289-324)C ognate to

( 1) marriage with a fifth w ife during iddat o f the fourth w ife.

(2) marriage with a fourth w ife when one, having threewives, co-habits w ith a fourth under a shubh or m kah-e-fasid, and such w om an is in iddat p. 324. N o n e m entioned in Quran or H adis p. 324.

C onflict o f view betw een H anifa and Shafei :

(a) described by H edaya pp. 324-6.

(b) described by Ibne Arabi pp. 123-5 ; 192-3

(c) described by Razi pp. 94-6.Argum ents in favour o f Shafei view pp. 193-6.Critical exam ination o f Hanafi view pp. 326-39.

M arriage with more than four women pp. 227-236

Bar to marriage, how it can be removed p. 76.

Bar must be removed before four women can be married in addition to wife. Durr p. 229.

W hether such marriages are batil or fasid pp. 233-6, Alamgiri pp. 131, 229, Am ir Ali pp. 232-3, Baillie p. 231, Hedaya pp. 227-8, Kifaya p. 228, Macnaghten p. 229, Mulla p. 232, Qazi Khan p. 228, Quran, pp. 8, 227, Rahman p. 231, Razi, p. 227; Tahtavi, pp. 117-8, W ilson, p. 230.

M arriage without witnesses pp. 237-50

Essential condition o f validity o f marriage. Hadis pp. 237, 238, 240, 241, Alamgiri pp. 240-1 Durr p. 239, Hedaya. pp. 238. 241, Mac p. 248, Qazi Khan p. 238, Rahman p. 249 Rudd p. 239, Saksena p. 249, Wilson pp. 248-9.

N ot essential condition. Amir Ali p. 246, Criticism pp. 246-7.

Baillie p. 244, criticism pp. 240-6. Mulla p. 247 criticism pp. 247-8.

Publicity in lieu o f witnesses pp. 238-9.

Quranic injunctions pp. 237, 239, 240.

Rule based upon Quranic verse 2.39.1, pp. 239-40.

W hether M alik considers the Hadis unauthentic pp. 412-3.Ibn Abu Zaic p. 243.

W ho should act as witnesses p. 239.

M arriage with Zawat-uI-Arham (Unlawful Conjunction) pp. 196-9.

Bar on marriage, how it can be removed pp. 76-7.

C o-habitation with two slave-girls who are Zawat-ul Arham

Durr p. 108.

C onjunction prohibited in valid marriage and in iddat Durr

p. 108.

M arriages with them unlawful A lam giri pp. 132-5, H edaya p. 199, and M acnaghten p. 138, Q azi K han pp. 19 - -

W ilson p. 138.

Saksena calls it irregular not void p. 139.

Zawat-ul-Araham , Definition, p. 197, Qazi K han 198, H edaya

p. 199.

M atriarchal system pp. 2, 3.

M uslim Jurisprudence, age o f consolidation o f, p. 44.

M uslim jurists and Roman juris consults, com parision pp. 69-7.

M uslim Law not territorial p. 35.

N apolean, Emperor, p. 172.

Nikah :

Definition Amir Ali p. 4, Baillie p. 4, H edaya p. 4 , Inaya p. 126, Kifaya. p. 125, M acnaghten p. 4 ; V iqaya p. 125, W ilson p. 4.

Essentials o f N ikah, Inaya p. 126, K ifaya p. 125, V iqaya p. 125.

Its nature according to M uslim Law (a) m ore than a civil contract p. 5 (b) partakes o f the nature o f Ibadat p. 5.

N ikah-e-fasid—

D efinition, Durr, p. 112.

D ow er custom ary, payable „ „ co-h ab itation K an z p. 125, Sharhe-Viqaya p. 126

Instances o f, Inaya p . | 27 , Z akhira p

N o t positively enjoined by Quran p. 5 .

Polyandry pp. 2, 3,203.

Prophet’s saying PP. 5, 6.

Prohibited with 19 classes o f w om en by Q uran p. 9 .

Prohibition on marriage.

Classification o f

(a) Prohibited wom en, Am ir Ali pp. 37-8; Durr pp. 16, 78-9; Fatawae Alamgiri pp. 17-18 79-80; Ibn Abbas

pp. 14,79, Mulla pp. 19-20, Qazi Khan, pp. 14-15, 78, Quran pp. 7-8; Rahim p. 19; Rahman p. 19, W ilson pp. 18-19.

(a) Prohibition p. 73, Chart of, p. 73.

Prohibitions either (A ) Permanent or (B) Temporary, Qazi Khan pp. 16, 38, 73, 78, 104.

Prohibition must be removed before marriage, Durr pp. 74, 109, 110, 229, Privy Council pp. 222-3; Rudd. p. 74, Tauzih Tahvih p. 65.

Prohibition, permanent and temporary, distinction between, pp. 83-9.

Prohibition, permanent, on grounds o f Nasab, Riza and M usahart, Qazi Khan p. 78.

On ground o f affinity, when it springs up, pp. 130-1.

produces no legal consequences p. 74.

Tem porarily prohibited women,

(a) H ow marriage with them cam e to be called fasid pp. 81-2.

(b) H ow the prohibition can be removed; m o’attada p. 75 mankuha p. 76, fifth wife p. 76, unlawful con­junction p. 76-7, mushrika p. 77. two ststers p. 77, slave pp. 77-8.

They are based upon existing physical conditions and change when the latter change pp. 85-6.

Quran (References are to Surah, R ukoo and verse respectively)

2.21.6 p. 13

2.27.5 pp. 7, 9, 10, 12, 200

2.28.1 p p . 2 0 1 , 292, 334, 335 ,336

2.28.2 pp. 292, 334, 335

2.28.5 p. 262

2 .28 .6 p. 263

2.28.7 pp. 7, 9, 263, 289, 303, 304

2.29.1 pp. 8, 10, 263

2.29.2 pp. 8 ,9 , 263

2.29.3 p. 264

2.30.1 p. 264

2.30.2 pp. 292, 327

2.30.3 pp. 8, 9, 290, 303

2.30.4 pp. 8, 290, 321

2.39.1 p. 240

2.39.2 p. 240

4.1.3 pp. 8 ,9

4.3.5 pp. 6, 9

4.3.8 pp. 7 ,9 , 10, 11, 12

4.4.1 pp. 7, 9, 1 1 , 1 2 ,9 1 ,9 6 , 173,251

4.4.2 PP. 7, 9, 1 1 ,96 , 1 9 5 ,2 5 1 ,3 3 54.7.1 p. 12

5.1.4. p. 12

33.6.9 pp. 290, 297

65.1.1 pp. 291, 322, 328

65.1.2 pp. 291 322, 328

65.1.4 pp. 290, 303

65.1.6 pp. 2 9 1 ,3 2 2

65.1.7 pp. 2 9 1 ,3 2 2

Q uranic verse can be repealed only by another Q uranic verse pp. 323-4.

Q uran’s interpretation by com m entators, m ust it b e fo llo w ed by courts pp. 152,

Res ipsa loquiter p. 59.

Rom an Jurisconsults pp. 44, 69.

Shubli :

C lassification o f

(I) Shubhat-ul-Fail or Shubhat-ul-Ishtibah pp. 52-5, Rudd p. 116.

Can be pleaded only in 8 cases p. 53.

C onsequences of, p . 28,53-4.

C onsequences o f co-habitation under pp. 53-4.

When no hudd inflicted p. 116.

(2) Shubha-fil-M ahal or Shubha Hukmia pp. 55-8 Ruddp. 116.

Cases in which it can be pleaded pp. 55-6.

Consequences o f pp. 57-8.

When no hudd inflicted p. 116.

(3) Shubh-fil-Aqd p. 58-67 Rudd p. 116.

Cases in which it can be pleaded p. 60.

Shafei, Y usuf and M ohammad disagree with Hanifa pp. 60-5.

Argum ents o f H anifa pp. 60-1.

Argum ents o f Shafei pp. 61-2.

A nalysis o f the two views p. 62-65.

Criticism o f H anifa’s views p. 65-7.

Fatwa according to Shafei view p. 64.

D octrine of, com plicated M uslim Law o f Marriage p. 67.

E volution o f the doctrine of, its causes p. 49.

Marriage o f M uslima and a Kafir and doctrine o f Shubh

p. 214-5.

W hether the doctrine is unintellegible verbiage p. 157.

Syed Sultan A hm ad, Sir, pp. 19, 255.

Texts-Arabic :(1) A b u L eeth

M arriage w ith a prohibited w om an, supports Y u su f and M oham m ad p. 31.

(2) Anqarvi

Punishm ent for adultery not dropped by m arrying or purchasing wom an subsequently p. 87.

(3) A sbeejani, M arriage with prohibited w om an p. 31.

(4) A shah, D efin ition o f m arriage p. 4.

(5) A uzai, husband untraceable, w ife to w ait or 4 yearsp. 339.

(6) A ynee

M arriage with w ife’s sister with k n ow led ge, batil p. 127,158

M arriage with two sisters by on e aqd, both batil, do dower p. 127.

(7) Buhr-ur-Raiq

Shubh-fil-Aqd, fatwa is according to the view o f Y u su f p. 64.

Shub-fil-fail, consequences o f co -hab itation p. 54.

M arriage with tw o sisters, i f on e in m arriage or iddat o f another, the marriage w ith other valid P- 121.

M arriage o f a w om an with tw o m en, o n e has four wives, her marriage with other valid p. 1 2 1 .

(8) Durr-ul-M ukhtar.

C ustom ary dower, when due p. 12 2 .

F asid marriage, w hat is .p. 122.

G rouping o f prohibited w om en p. 16.

Iddat, m eaning o f, p. 109.

M arriage, a form o f Ibadat p. 5

(a ) w ith two sisters pp. 107-8

(b) w ith m ore than four w om en pp. 228-9

(c) w ithout w itnesses p. 239

N ik ah , nature o f, p .5.

(9 ) F ataw ae Alam giriBatil marriage, does it reject the notion o f pp. 31-2,

33-4.

Criticism o f pp. 163-6.

G rouping o f prohibited w om en pp. 17-18, 79-80, 129-37.

H udd, liability to , for adultery with wom an one subsequently marries or purchases pp. 87-8.

Iddat o f a pregnant w om an, period o f p. 298.

Is it to M uslim Law what Justinian’s Institute is to R om an Law p. 153.

Its authoritativeness in India pp. 34-5, 151-2 M arriage

(a) w ith ham ila( pregnant w om an), p. 136

(b) with m ankuha (married w om an) p. 135, 253.

(c) w ith m o’attada (w om an in iddat) p. 135

(d) w ith m ore than four w om en p. 131.

(e) w ith m utallaqa (thrice-divorced wife), p. 137,265

(f) w ith polytheist pp. 136-7, 205

(g) w ith tw o sisters pp. 132-5

(h) w ithout w itnesses pp. 240-1

Plan o f the b ook pp. 163-4

Prohibited w om en, classification and enum eration o f o f pp. 129-37.

(10) F ataw ae Q azi K han

A dultery, where act am ounts to , but no hud (a) for both p. 30 (b) for m an only p. 47.

D efin ition o f (a) Zina p. 46, (b) M ahar p. 122

D iv ision o f prohibition into perm anent and n on ­

perm anent p. 78.

G rouping o f prohibited w om en p. 15.

H udd, where obligatory according to H anifa p. 5 9 ...

Tddat.(a) o f Aysa (wom an who gets no m enses) p. 295

(b) o f pregnant wom an p. 298

(c) various periods o f p. 294.

M arriage

(1 ) o f an apostate p. 332

(2) with ham ila pp. 285-6

(3) with m ankuha PP. 251-2, 307.

(4) with m o’attada p. 307

(5) with more than four w om en p. 228

(6) with mushrika p. 205

(7) with tw o sisters pp. 104-6, 158W here these marriages successive p. 189

(8) with Zawat-ul-Arham pp. 197-8

(9) w ithout w itnesses pp. 238-9

Shubh-fil-Aqd

(1) Instances o f p. 60

(2) Conflict o f opinion between H anifa and Shafei p p .60-62

(11) Fath-ul-Q adir

Batil and Fasid , no difference in m arriage pp. 127-8.

M arriage w ith tw o sisters

(a) by one contract, both batil

(b) by successive contracts, second batil p . 128

( 12 ) Hadis (Prophet’s sayings)

Co-habitation with two sisters prohibited p. 91

M arriage, a meritorious act pp. 5-6

Marriage without witnesses p. 236, 237, 238, 240, 241

M ohullil and M ohlil-Ja-hoo, p. 278

Rajm, prescibed punishment for adultery by married persons p. 49

Son and his property belong to father p. 57.

Talak, distasteful to G od p. 278.

(13) Hedaya

Conflict o f opinion between Hanifa and Shafei, on marriage with

(a) fifth wife during the iddat o f the fourth p. 326.

(b) prohibited woman pp. 42-3

(c) w ife’s sister during wife’s iddat pp. 324-5

Criticism o f Hedaya’s view pp. 328-9

Definitions (a) o f N ikah p. 4.

(b) o f Zina pp. 29, 46-7.

G o d ’s curse on M ohullil and M ohlil-la-hoo p. 278

Hudd, none for

(a) adultery in Dar-ul-Harb p. 48

(b) sodom y with a woman p. 47

(c) Unnatural act with a beast p. 48

H usband’s rights over divorced wife pp. 301-2

Iddat o f A ysa, period o f pp. 294-5

M aintenance o f a w idow during her iddat p. 328

M arriage

( 1) with fifth w ife during the iddat o f the fourth p. 326

(2) with hamila p.286

(3) with m o’attada p. 307

(4) w ith m ore than four w om en pp. 227-8

(5) w ith m ushrika p. 205

(6) w ith m utallaqa pp. 264-5

(7) with sister o f w ife or o f a b o n d sw o m a n

pp. 99-100 158

(8) with wife’s sister during w ife ’s iddat p . 324-6

(9) with Zawat-ul-Arham p. 199

(10) w ithout w itnesses pp. 238

M o’attada not to decorate herself pp. 321-2

M o’attada, proposal o f m arriage to p. 321

Shubh, D octrine o f p . 52-53; 55-6

Valid retirement and iddat p. 297

Valid retirement what am ounts to p. 296-7

(14) Ibne Abbas

D ivision o f prohibited w om en pp. 14,79

(15) lbne A bu Zaid

Apostacy, effect on m arriage p. 206

Conversion to Islam , effect on m arriage p. 206

D ivorce before co-habitation , no iddat p. 299.

Husband untraceable, w ife to w ait for fou r years p. 339

Iddat, period of,

(a) o f A ysa p. 299(b) o f divorced w om an p. 298(c) o f pregnant w om an p. 299(d) o f w idow p. 299

M arriage, necessity o f w itnesses p. 243

M arriage with M ushrika p. 205

M arriage, what w ill create a perpetual bar to , pp. 308-9

M o a tta d a , no proposal o f m arriage to p . 321.

(16) Ibne Arabi

Conflict o f opinion between Arabi and Hanifa pp. 123-25

Division o f prohibited women pp. 14, 79

(1) Marriage with w ife’s sister like one with ownsister p. 123.

(2) Marriage with wifes’ sister during wife’s iddatpp. 123-25

(3) Marriage with fifth wife during iddat o f fourth wife p. 123-5.

Nikah-e-fasid, invalid p. 83.

(17) Inaya.

Fasid marriage, nasab eslablished p. 127.

Instances o f fasid marriages (a) without witnesses(b) with w ife’s sister during wife’s iddat (c) with fifth wife during iddat o f fourth p. 127.

M arriage with two sisters p. 158.

(a) by one contract, both batil.

(b) by successive contracts, second batil, if con­tracted with khowledge p. 127.

Marriage, presence o f witnesses necessary pp. 240-1;

244.

N ikah, definition and essentials o f p. 126.

(18) Jam ai Qazi K han

H udd not dropped by subsequently marrying or purchasing woman p, 87

(19) Jam ai-ur-Rum uz (K ohistani)

Batil and Fasid marriages, no difference between them pp. 128, 158.

N ikah which is fasid i.e. batil,p. 128

(a) Instances o f p. 128-9( 1 ) marriage with a w om an prohib ited per­

petually or tem porarily

(2 ) marriage with a w om an on w h ose b eh a lf there has been com pulsion .

(3) marriage w ithout w itnesses

(4) ' marriage with a slave girl upon a tree wom an

(5) marriage within the period o f iddat

(6) marriage in other instances

(b) Effect o f such a marriage pp. 128-9.

Fatwa on the opinion o f M alik perm issible p. 339.

Husband untraceable, w ife m ay marry after 4 yers pp. 339.

Kanz

Definition o f marriage p. 4

Invalid marriage, custom ary dow er payab le p. 125

Marriage with w ife’s sister, batil p. 158.

K ashf

Marriage with maharim p. 64.

Khulasa

Sodom y with a w om an, mahar not p ayab le p. 122

K ifaya

Adultery, cases where no hudd for p. 47.

Marriage,

definition o f p. 4

with m ore than four w om en p. 228

with tw o sisters pp. 10 1 , 103,

N ikah , m eaning and essentials o f p. 125.

Rajm , authority for p. 4 9 ..

(24) Lubab.

Butlan and Jasad, synonym ous terras p. 69.

(25) M absut

Marriage with two sisters.

(a) if held together, both invalid

(b) if successive, first valid, second invalid p. 168.

(26) M ajm a-ul-Anhar

Butlan and fasad, no difference between them in marriage p. 68

(27) M ajma-uI-Fatawa

M arriage between a Kafir and a Muslima batil p. 118.

(28) M ohit

Critical exam ination o f pp. 165-171'.

M arriages with

(1) fifth wife during the iddat o f the fourth p. 319

(2) M ankuha p. 121

(3) m o ’attada pp. 121, 319

(4) two sisters pp. 121, 143

(5) w ife’s sister during the iddat o f the wife p. 319.

N o t available in India p. 166

Rudd disagress with M ohit on questions o f

(a) a marriage with mankuha

(b) a marriage with m o’attada

(c) a marriage o f a M uslim a with a Kafir pp. 114-15,

119.

(29) M oozm iratM oozm irat, Alamgiri and Baillie p. 31.

(30) M ujtabacases where iddat becomes obligatory pp. 114-5.

(31) R udd-u l-M uhtarBar to m arriage m ust be rem oved before m arriage

p. 74.

Batil and fasid marriages, no difference except in

iddat pp. 69, 245, 308

C lassification o f prohibited w om en p. 17.

C ollection o f maharim, explanation p. 16.

Custom ary dower, when becom es due pp. 122-3.

Durr-ul-M ukhtar, com m ents on pp. 119-22.

Fasid marriage, what is pp. 112-16.

H udd, cases where not inflicted pp. 116-17.

Iddat, obligatory in twenty cases pp. 109-10

M arriage

( 1) with a ham ila p. 287

(2) w ith a m ankuha pp. 252-3

(3) with a m o’attada p. 307

(4) with two sisters p . l l l

Shubh, discussion o f pp. 116-17

Shubh-fil-mahal, instances o f p. 56

Talak, distasteful to G od p. 278

W ho should be present in nikah p. 239(32) Sharhe Viqaya.

Invalid marriage, dower payable on co -h ab ita tion only p. 126.

M arriage with m ankuha p. 256

M arriage with w ife’s sister invalid p. 158

(33) Tafsir K abir

D iv ision o f prohibited w om en p 78 Iddat, various periods o f pp. 304.5 Chart o f above p. 306 M arriage

(1) o f a Kafir with tw o sisters, effect o f his conver*sion on his marriages pp. 97-8.

D ifference o f view between H anifa and R azi p. 98

(2) with a m ankuha p. 251

(3) with m ore than four w om en p. 227

(4) with a scriptural w om an p. 200

(5) with tw o sisters pp. 91-9

(6) with w ife’s sister during w ife’s iddat p 95A rgum ents o f Shafei and H anifa pp. 94-6

Q uranic verse 4 .4 .1 ., Tafsir o f pp. 92-4.

(34) Tahtavi

Fasid m arriages, instances o f pp. 117-8.

C riticism o f his view s pp. 118, 119

(35) T anw eer-ul-A bsar

Fasid M arriage, dow er payable in p. 112

(36) Taw zih Talw ih

M arriage with prohibited w om en batil p. 65.

(37) V iqaya

M arriage, definition o f p. 125

M arriage legalises enjoym ent p. 125

(38) Z akhirat-u l-U qba

Fasid M arriages, instances o f p. 128

(a) m arriage with fifth w ife during iddat o f fourth w ife

(b) m arriage w ith w ife’s sister during w ife ’s iddat

(c) m arriage w ith ou t w itnesses

M arriage w ith tw o sisters p . 158

(39) Z in eeaTf

a Pers° n m arries a prohib ited w om an k n o w in g ly ar,d coh ab its w ith her, he is g u ilty o f Z in a P- 115.

T ex ts , English

(1) A bdul Rahim

Marriage with two sisters held simultaneously p. 139.

Void and vitiated marriages p. 19.(2) A bdul Rahman

Classification o f prohibition p. 19

Divorces, one or two, effect o f p. 302

Divorces, three, effect o f p. 268

Marriage, proposal of, to whom it cannot be made p. 254

(1) Marriage with mo’attada p. 315

(2) Marriage with more than four women p. 231

(3) Marriage with mushrika p. 207

(4) Marriage with mutallaqa p. 268

(5) Marriage with two sisters pp. 138-9

(a) by on e contract, both vo id p. 138

(b) by successive contracts, secon d vo id p. 139

(c) i f on e w as observing iddat, m arriage w ith other valid pp. 138-9

(d) i f priority not k now n, b oth v o id p. 139

(6) secon d m arriage a lo n e co n su m m a ted , earlier on e rem ains valid p. 139.

(6) Marriage without witnesses p. 249.(3) A m ir A li

A ttach es excessive im portance to F a ta w a e A la m g ir i pp. 171-2

C lassifica tion o f causes o f p roh ib ition p p . 37-8

cr itic ises B aillie p. 21

D efin ition o f N ik a h p. 4

D o e s not refer to Q uran pp. 89-90

H is con trad ictory sta tem en ts pp. 173-80

M arriage

(1) w ith h am ila pp. 287-8

(2) w ith m ankuha pp. 253-4

(3) w ith rno’attada pp. 299 , 310-11

criticism o f his v iew s pp. 311-15

(4) w ith m ore than four w om en pp. 232-4

criticism o f his view s pp. 234-6

(5) w ith m ushrika pp. 216-22

w hether the proh ib ition is p olitica l in nature

pp. 225-6

. (6) w ith m utallaqa p. 267

(7) w ith tw o sisters p. 140-2

criticism o f his view s pp. 171-87

(8) w ith ou t w itnesses p. 246

C riticism o f his view s pp. 246-7

B aillie

D ifin ition o f nikah p. 4

D o es not refer to Quran p. 89

D u ration o f iddat p. 299

H an ifa ’s v iew to be preferred to th ose o f his d isc i­ples pp. 31-3.

H is w ork p. 20, its criticism pp. 21-35

M arriage

(1) W ith ham ila pp. 286-7

(2) W ith m ankuha p. 254

(3) W ith m o ’attada pp. 309-10

(4) W ith m ore than four w om en pp. 230 I

Criticism o f above pp. 233-6

(5) W ith M ushrika pp. 207-8.

Criticism pp. 208-13

(6) W ith mutallaqa pp. 266-7.

Criticism pp. 279-84

(7) W ithout witnesses pp. 240-2

Criticism pp. 242-6.

(5) M acnaghten

Definition o f marriage p. 4

Marriage

(1) With a mankuha pp. 255-6

(2) W ith m ore than four w om en pp. 229-30

(3) W ith scriptural w om en p. 205

(4) W ith two sisters pp. 138, 144

(5) With two wom en related to each other w ith inprohibited degrees p. 138

(6) W ithout w itnesses p. 284

(6) M oham m ad Y usuf

Bar o f prohibition must be rem oved before m arriage p. 229

M arriage with a mushrika p. 214

Periods o f (a) gestation and (b) iddat o f an A ysa wom an, how calculated p. 295.

(7) M ulla

M arriages

division into Batil, Fasid and Sahih p. 19

( 1 ) with m ankuha pp. 254-5

(2) with m o’attada p. 316

(3) with m ore than four w om en p. 232

(4) with mushrika p. 216

(5) with m utallaqa p. 267

(6) with scriptural w om an p. 216

(7) w ithout w itnesses pp. 247-8

(8) o f a m uslim a w ith a non-M uslim p. 216.

Pregnant w idow , period o f iddat o f p. 300

( 8) R ussell and Suhrawardy

See Ibn A bu Zaid

(9) Saksena

M arriage, form o f C ontracting p. 249

U nlaw ful conjunction , m arriage irregular p. 139

(10) Tyebji

N o t based upon original authorities, but m ainly upon B aillie and A m ir A li p. 143

Supports B aillie’s view s on fasid m arriage p. 151.

(11) W ilson

D efin ition o f m arriage p. 4.

Iddat o f a pregnant w om an p. 300

M arriage, how to be contracted pp. 248-9.

M arriage with

(1) m ankuha p. 254

(2) m o ’attada p. 309

(3) m ore than four w om en p. 230

(4) m ushrika p. 206

Effect o f a m arriage w ith a m ushrika p. 107

(5) M utallaqa pp. 267-8; 277-9

(6) Z aw at-u l-A rbam p. 138

R ules restrictive o f interm arriage p. 18

T ext, Urdu

M ajm a-ul-Fatwa

A H anafi can follow Shafei law in som e m atters p. 339

W ife

Quran grants full perm ission to enjoy p. 334

except during m enses pp. 221, 334.

Zina

Accusing wom an of, heavy punishm ent for p. 42

Circumscription o f the term Zina p. 47

Definition, Quran does not define Zina p. 184

Later jurists define it p. 185, H edaya p. 28, 29, Qazi Khan p. 46.

Hudd, may not be awarded though co-h ab ita tion is Zina pp. 28, 29-33, 47, 48

Punishment for pp. 46, 48, 49

Quran, what it assum es to be Zina p. 185.

Rajm, authority for p. 49.