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1'. Tati'n Jt VMUJ.S, \ 1'. ta ti'N jt VMUJ.s, \ o S £ o ^ Q id £ PERPUST\KAAN F A K t U '-S i.: Kl'rl II.i. TANCGA ^ NOMCF 5!!. \A'A~] ‘k./Hl <900V Asal B uku •tubies m Muslim E a t o Vol. I. ( Batil and Fasid Marriages ) by Dr. N. U. A. SIDDIQUI, M.A., B.C.L. (Oxon.), LL.D. (Trinity College, Dublin), of Gray's Inn., Barrister-at-Law, Dean of the Faculty of 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 illus((nn 3LaUi Vol. 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 of Law Dacca University. Author of Judicial Organisations of the World, Synopsis of the Muslim Law of Wafcf, Principles of the Transfer of Property Act. 1882 etc. etc. Priee Rs. 15. DEDICATION This work is respectfully dedicated, with his Lordship’s permission, to THE HONOURABLE Mr. J U S T IC E MOHAMMAD MONIR the Chief Justice of Pakistan. as a humble tribute to his scholarship, erudition and reputation as jurist, author and judge. f o r e w a r d Minister for Law. Government of Pakistan. Karachi. 19 t h M a y , 1 9 5 3 . T think the students of Muslim Law owe a deep debt of gratitude to Dr. N. U. A. Siddiqui for the contribution e has made to the legal literature of mankind publishing his scholarly thesis on Batil and asid marriages in Muslim Law ” Anv- one acquainted with this branch of legal literature would find that the author has really grappled with the problem, and has dealt with the subject in a very scientific and systematic manner. 1 have no doubt but that his originality and his power of analysing he subject matter will deserve due recoe- mtion at (lie hands of the students of Muslim Law. As a Professor of Law at the Dacca University he author has been teaching law for many years.’ -te has been able to put his spare time and leisure to a serviceable use by writing very good books on M oham madan Law. I hope his example will be followed by other Professors of Law as also the practising lawyers so that as a result of their scholarly researches in the domain of Law, Pakistan is able to make an effective and everlasting contribution to the legal literature of 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 passa­ ges 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 funda­ mental question of the natnre of the so called fasid marriages. This was not a mere academic ques­ tion 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 ques­ tion 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 deci­ sion 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 of 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 Amir Ali and Baillie are the great exponents of 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 inordi­ nate length. I have quoted from them extensively, with a view to analyse their statements and point out their contradictions and want of logic. I have, always, given full references to pages. These references relate to “Mohammedan Law” by Amir Ali, Vol. II, (4th Ed.), 1917, and to “A Digest of M ohammedan Law” by Baillie. Part First (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 permit­ ting 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 correc­ tion 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 TABLE o r CONTENTS Dedication Foreword Page Preface i—i> Table of Contents ... ... v—x Table of Cases ... ... xi—xii Errata ... ... ... xiii—xv Bibliography ... ... ... xvi—xviii PREAMBLE S e c t io n I. Sexual Co-habitation and Natural Instincts ... 1-3 S e c t io n IT. Muslim Concept of Marriage ... ... 4-9 Nikah— its definitions p. 4— Hadis p. 5-6— Q u r a n ic verses pp. 6-9. S e c t io n III. The Terminology of the Quran ... ... 10-13 S e c t io n IV. The Women Prohibited in Marriage 14-20 Prohibited women p. 14— Their groupings— Ibn Abbas p. 14— Kazi Khan p. 15-16—Dur- ul-Mukhtar p. 16—Rudd-ul-Muhtar p. 16-17 Fatawae Alamgiri pp. 17-18—Wilson p. 18— Abdul Rahman p. 19— Mulla p. 19. Page S e c t io n V. Baillie 20-35 His works p. 20— Its criticism by Amir Ali pp.
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