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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. 21-22— Baillie’s line of argument p. 22— Its criticism pp. 22-28—Zina p. 28-29—where there will be hudd p. 29-30—Where only one party will suffer hudd p. 30-31— Further analysis of Baillie’s opinion pp.31-35.

S e c t io n VI.

Syed Amir Ali 36-42

His classification of causes of prohibition p. 37-38—Enumeration of prohibited women p. 39-41—Temporarily prohibited women p. 40-41— Marriage of Zani and Zania p.41-2

S e c t io n VII.

Abu Hanifa and his disciples 42-45 Conflict of opinion between Hanifa and Shafei p. 42—List and dates of Sunni Imams p. 44.

S e c t io n VIII.

Zina 46-49 Its definitions by Kazi Khan p. 46—Hedaya p. 46—Punishment for Zina pp. 46, 48-49— When no hudd awarded p. 47-48.

S e c t io n IX.

The Doctrine of Shubh 49-67 Severity o f hudd caused its evolution p. 49— When there would be no hudd p. 50—Shia Law does not recognise fasid mirriages p. 51— Division of Shubh pp. 52—Shubh-i-Ishtibah or Shub-Fil-Fail pp. 52-55—It can be pleaded Page in 8 cases only p. 53—Consequences of this S h u b h p. 54—Shubh-e-Hukmiah or Shub- Fil-M ahal p. 55-58— Is it limited to six cases p. 55-56— Prophets’ saying p. 57— Shub-Fil-Aqd pp. 58—Abu Yusuf, Mohammad and Sliafei pp. 60-62— Bahur, p. 64— Kashf p. 64— Tawzih Tahvih pp. 64-65—Criticism of Abu Hanifa’s views p. 65-67.

S k c t io n X. Evolution of the Conception of Fasid Marriage 67-72 Early jurists make no distinction between batil and fasid p. 68-69— Introduction of the class of fasid marriages p. 71-72.

S f .c t io n XI. Classification of Prohibited Women ...... 73j Classification of prohibitions p. 73—Effects of a marriage with a permanently prohibited woman pp. 74-75—Temporarily prohibited women p. 75—When can the latter be law­ fully married pp. 75-78—How ancient texts have discussed cases of prohibition p. 78-79— Possible origin of fasid marriages pp. 82-83— Child of fornication can not be legitimised p. 87-88—An uncertain future event cannot alter present legal position, illustrations p.84-90

C H A PT E R 1.

Conjunctions of two sisters in marriage 91—196

Texts— Quran p. 91, Hadis p. 91, Tafsir Kabir p. 91-99; Hedaya and Kifaya 99-104; Qazi Khan 104-107; Dur-rul- Mukhtar 107-109, 112; Rudd-ul-Muhtar p. 111-117; Tahtawi p. 117-118; Rudd-ul-Muhtar 118-123; Ibne Arabi p. 123-125; Kanz p. 125; Kifaya p- 125; Viqaya 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 of 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 of Chapter p. 187-196.

CHAPTER 11

Unlawful Conjunction pp. 197-199

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

CHAPTER 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. 205-6- Abdul Rahman p. 207—Wilson pp. 206-7— Baillie pp. 207-8—Criticism of Baiilie 207-213—Md. Yusuf 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.

CHAPTER 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, Yusuf 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 arriage without witnesses pp. 237-250

Q u r a n P- 2 3 7 ’ P r o P h e t’s saying p. 237— Hedaya p. 238— Q a zi K h a n pp. 238-9— Dur-rul-Mukhtar p .2 3 9 ,'R u d d -u l- M u h ta r Quranic verses 2.39.1 an d 2, p. 240— Baillie PP' ^40-2 Criticism of B aillie pp. 242-6— A m ir A li P- 246-7 M u 11a 247-8— Macnaghten p. 248— W i l s o n P- 248-9 — Abdul Rahman p. 249— Saksena |5 249-— Summery p. 250.

C H A P T E R VI Married Women pp. 251-261.

Q u r a n i c verses p. 251— Imam Razi p. 251— Q azi K h an pp. 251-2— Rudd-ul-Muhtar pp. 252-3— Fatawae Alamgiri p. 2 5 3 — A m ir A li pp. 253-4— B aillie p. 254, W ilson p. 254, Abdul Rahman, p. 254— M u lla pp. 254-5— Macnaghten 255, 256— H ed a y a p. 256— Sharhe Viqaya p. 256-- C a se -la w 255 61.

CHAPTER VII

iVlutallaqa pp. 262-84

Definition p. 262— Quranic verses pp. 262-4— H ed a y a pp. 264-5— F a ta w a e Alamgiri pp. 265— Baillie pp. 266-7— Amir Ali p. 267, M u lla p. 267— Wilson pp. 267-8— A b d u l R a h m a n pp- 268-9— Case-law pp. 269-74— Summary of Q u ra n ic injunctions p p. 274-79— Mohullil and Mohlil la h o o p. 278— Comparision o f a m arried w o m a n an d a thrice-divorced wife pp. 279-284.

CHAPTER VIII

Unlawfulness arising from Pregnancy pp. 285—288

May arise in three ways p. 285— Qazi Khan pp. 285-6— H e d a y a p. 286— B aillie pp. 286-7— Rudd-ul-Mnhtar p. 287— A m ir A li pp. 287-8. C H A PT E R IX

Marriage during Iddat. pp. 289—339

Marriage with a woman who is herself in iddat p. 289-324 Quranic verses pp. 289-294—Various periods of iddat pp. 294-300— Iddat on divorce pp. 294-5— Of widow p. 295-7 Khilwat-e-Sahiha p. 297— Iddat of a pregnant woman p. 297-300—Marriage with a mo’aUadah pp. 300-!6 Case-law 316-19—Marriage not to be proposed to a mo’attada 321—Further arguments aganist a marriage with a mo’aUadah 321-2—Quranic verse can only be repealed by another Quranic verse pp. 323-4. Prohibition on marriage of one woman during iddat of another woman pp. 324-39—Not mentioned 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 widow gets no maintenance during iddat 328-9— Hindu Law of marriage p. 333—Period of waiting when husband is untraceable p. 338-9—Conclusion p. 340.

Index TABLE OF CASES

Page

1. Abdul Qadir v Salima. I.L.R.8 All. 148 33

2. Abdul Razzak v Aga Mohammad Jaffer Binda- min L.R. 21. I.A. 56 217,222

3. Aga Mohammad Jalfcr Bindamin v Koolsoom Bibi, I.L.R. 25. Cal 9 (P.C.) 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 Mohammad Cliowdliry r Saiqul Bibi (1910) 7.I.C.820 ...... 50,53,159,256

7. Budansa Rowther i> Fatima Bibi, 22. I.C. 697 ... 224,257

8. Farzand Husain’s Case. I.L.R. 4 Cal. 588 271

9. Government of Bombay v Ganga. I.L.R. 4 Bom. 330 223,260 10. Hammad v K..E. A.l.R. 1931. Lah. 194. 260-1 11. Ihsan Hasan Khan v Panna Lai A.l.R. 1928 Pat. 19. 225 12. In the matter of Ram Kumari. I.L.R. 18 Cal. 264 223,259 13. Jhandu v Hussaini Begum. I.L.R. 4. Lah. 192 317-9 •4. Khatoon v Abdullah Khan, A.l.R. 1937 Lah. 270 269 *5. Liaqat Ali v Karim-un-nissa. I.L.R. 15. All. 396 Mammi v Kalandar Ammal. L.R. 54. l.A. 61 271

Mohori Bibi v Dliurmodas. L.R. 30. I.A. 114 85

Mst. Bakht Bibi v Qaim Din. A.I.R. 1934 Lah. 907. 316

Mst. Butoolun v Mst. Koolsoom. 25.W.R. 444 ... 249

Mst. Kaniza i’ Hasan Ahmad Khan. A.I.R. 1926 Qudh 230. S9-6U

Mst. Ruro V Bagh Singh. A.I.R. 1935. Lah. 23 ... 316

Mst. Saidan v Sharaf. A.I.R. 1937 Lah. 759. 224

Narantakath Avullah v Parakhal Mamrnu A.I.R. 1923 Mad. 171. 215

Rashid Ahmad v Anisa Khatoon. L.R. 59. l.A. 21. 69-71

Shareefunnisa v Khajurunnisa Khanum 3. S.D.A. Sel. Rep. 210 114

Syed Muzaffer AM v Qamr-un-nisa Bibi. Suth. W.R. supp. Vol. 32. 194

Tajbi v Mowla Khan. I.L.R. 41. Bom. 485 150-9

Taliamand r Mohammad Din. I.L.R. 12 Lah. 52. 160-2 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 commas in place of 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-legitimacy read illegitimacy. P 29, 1. 21, for Mamilton read Hamilton. P. 29, 1. 23, for vanina read vagina. Page. Line. 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 Dhurmodas.

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 commas before and after it.

P. 176, 1. 10, for formations read formation.

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

P. 203, 1. 26, for comminicties read communities. 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 Nor 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 Mohammad bin Abdulla known as Ibn Arabi of Morocco.

2. Aynee, a Commentary of Kanz-ud-Daqaiq and Hedaya by Quzi-ul-Quzzat Badruddin Mahmud bin Ahmad 855 A. H. 1446 A.D.

3. A1 Buhr-u-Raiq, a Commentary of Kanz-ud-Daqaiq by Imam Zain-uddin bin Najim of Egypt. 970 A .H .

4. Anqarvi or Fatawae A1 Anqarvi by Sheikh M ohammad bin Hashani 1098 A.H.

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

6. Dur-rul-Mukhtar by Mohammad Ala-uddin Al-Hiskafi.

7. Fatawae Alamgiri by Shaikh Nizam and others 1660 A.D. Note.Uts Urdu translation is known as Fatawae Hindiah. It has been translated by Ehtisham Uddin)

8. Fatawae Qazi Khan by Qazi Khan Abul Mafakhir Fakhruddin Hasan bin Mansur Auzjandi 592 A.H, 1190 A.D.

9. Fath-ul-Qadir by Kamal Uddin Mohammad bin Abdul Wahid-al-Siwasi. 1456 A.D.

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

11. Inaya by Akmal Uddin bin Mahmud 1384 A.D.

12. Jamai Qazi Khan by Qazi Khan Abul Mafakhir Fakhruddin Hasan bin Mansur Auzjandi 592 A.H. 13. jamai-ur-Rumuz, a short commentary on Hedaya known also as Kohistani by Shams Uddin^Kohistani 1534 A.D.

14. K.anz-ud-Daqaiq by Abul Barakat Abdulla Bin Ahmad- ul-Nasafi. 1300 A.D.

15. Kashaf-ul-Asrar, a commentary on Usui Fakrul Islam Bazdavi by Abdul Aziz of Bokhara, about 482 A .H .

16. Kifaya, a commentary on Hedaya by M ohm ud bin Ubaid Ullah bin Mahmud. 1346 A.D. 17. Kitab-ul-Mabsut (in 30 Vol.) by Shams Uddin Sarkhassi. 18. Lubab, a commentary on Hedaya by Shaikh Rahmat Ullah. Sindhi.

19. Majma-ul-Anhar, a commentary on Multaqil Abhar by Abdul Rahman bin Shaikh Mohammad bin Sulaiman 1077 A.H, 20. Mohit by Shams Uddin Sarkhassi.

21. R u d d u l Muhtar by Mohammad Amin bin Abidin. 22. Sharh-e-Viqaya, a commentary on Viqaya by Ubaid Ullah bin Masoodi 1349 A.D.

23. Tahtawi, a commentary on Durr-ul-Mukhtar by Syed Ahmad-Al-Tahtawi 1243 A.H. 1839 A.D. 24. Talwih, a commentary on Tauzih by Sa’ad Uddin Masud bin Um ar Taftazani 791 A .H .

25. Tauzih by Sadrus-Shariah, 8th Century A.H. 26. Tafsir-e-Kabir by Abu Bakr Fakh Uddin Razi. 27. Viqayat-ur-Rawaya by Imam Burhan-us-Shariah 1349 A .D . 28. Zakhirat-ul-Urba, also known as Akhi Chalpi, a com­ mentary on Sharhe Viqaya by Yusuf bin .Tunaid Tuqani 905 A.H. 1496A.D, English

1. Abdul Rahmim, Sir, Muhammadens Jurisprudence.

2. Abdul Rahman, Institutes of Mussalman Law.

3. Amir Ali, Syed, Mahommedan Law.

4. Hamilton, Charles, Hedaya.

5. Macnaghten, Sir, W.F. Principles and Precedents of Moohummudan Law.

6. Mahomed Yusoof, Mahornmedan Law (T.L.L.).

7. Mohammad Ullah Ibn S. Jang, A Dissertation into Muslim Law of Marriage.

8. Russell and Suhrawardy, First Step in Musliim Juris­ prudence.

9. Saksena, K.P., Muslim Law as administered in British India.

10. Tyabji, Faiz Badruddin, Principles of Muhammadan Law.

11. Wilson, Sir Roland Bart. Anglo-Muhammedan Law. PREAMBLE SEC TIO N I. Sexual Co-habitation and Natural Instincts. “No part of the Mussalman Law,” says Syed Amir Ali, “is more difficult to comprehend than the rules that relate to connections which, although n o t r e g a r d e d as quite valid ( S a h i b ) give rise, on consummation, to some of the consequences result­ ing from a valid marriage” (p.376). How and when these complexities crept in and what agencies are responsible for their introduction into the Muslim Law, will be discussed later on at their appropriate places. Since we are to discuss the points of difference between fasid and batil marriages according to the Muslim Law, it will not be inappropriate to discuss, in the first instance, the basic conception of Marriage in Muslim Law, and to determine the socio-religious character given to it by the Shariat. Satisfaction of sexual instinct is a biological necessity. Tt is a call of nature. Not only human beings, but lower animals also feel the impulse for if. Nature itself has laid down certain rules for the satisfaction of this craving. Even the lower animals uniformly, though uncons­ ciously observe certain rules ingrained in their n a tu re e.g. they will mate only (1) at particular seasons, (2) with animals of their own species (with 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 regula­ tes 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 civili­ sation. 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, social or religious. Even in the Islamic State of akistan, there is no provision in the Criminal aw, declaring illegal a sexual co-habitation without matrimonial ties. Law may not punish, but Nature does not forgive such acts. The gradual extinction °f the aborigines practising customs of group marri­ ages, matriarchal system and polyandry, the falling biith rate in some of the more advanced European Countries, like France, without any ostensible cause and inspite of all State efforts to increase the birth rate, the various forms of diseases and infirmities resulting from a violation of the Nature’s Code °f conduct are, in fact, its revenge and punishments from which the delinquent cannot escape. Islam calims to be a religion which teaches mankind to attain perfection, both spritual and temporal, by •egulating his conduct according to the inviolable Code of Nature. It takes cognisance of Human Nature. As a necessary corollary to this fact, it does not forbid or discourage matrimony, or, what is the same thing, extol celibacy by prescribing it as a surer means of attaining perfection, or, of gett­ ing salvation, than matrimony. The History of the Roman Catholic Church, a peep into the inside of some of the abbacies and nunneries in Mediaeval Europe, a glimpse into the conditions prevailing, even today, in some Hindu Maths and the utter moral degradation of the Dassis who were attached to the Hindu temples in South India are the best proofs of the inherent soundness of Islam’s conception of marriage. SECTION IL

Muslim Concept of Marriage.

Muslim Jurists have not attempted to give a precise definition of marriage. Hedaya merely says “N ikkh, in its primitive sense, means carnal Conjunction. Some have said that it signifies conjunction generally. In the language of law, it implies a particular contract used for the purpose of legalizing generation” Hamilton Vol. I p. 71. Baillie has given a definition taken partly from kanz and partly from Kifayah. He says : “Marriage is a contract which has for its design or object the right of enjoyment, and the procrea­ tion of children. But it was also instituted for the solace of life, and is one of the prime or original necessities of m an” p. 4. Macnaghten defines it as “a contract founded on the intention of legalising generation” p. 56. Syed Amir Ali quotes “Ashah” as follows : “Marriage is an institution ordained for the protection of society, and in order that human beings may guard themselves from foulness and unchastity” Vol. II p. 315. Wilson defines it “as a contract tor the purpose of legalising sexual intercourse and the procreation of children” p. 98. Now, without attempting any comprehensive definition, let us examine its nature according to the ( r> ) Muslim Law. It is generally called a civil contract, blit this description is misleading. In Muslim Law, it is som ething more than a mere civil contract. The institution of marriage is regarded by Muslim Jurists, as a secular contract partaking of the nature of Ibadat (religions rite.). It is laid down in Dur- rul-Mukhtar. (See Text 51). “No other form of Ibadat has been prescribed for us (human beings), which is coming down from the time of Adam and which continues even now and which will continue in the Heaven, except Nikah and Faith.” In the Quran itself we do not find any positive injunction enjoining upon Muslims any absolute duty to marry. The reason is obvious. Quran lays down a code of conduct which must be follow­ ed by every true Muslim. For a multitude of reasons, it might not be possible for some Muslims to marry. Therefore if Quran had laid down any such injunction, it would have qualified this duty, and would have also mentioned and enumerated grou­ nds of exemption, as it consistently does whenever it imposes any positive duty. This enumeration would have been too long. Therefore the next best thing was done, and the Prophet was made to declare. “Nikah is my sunnat, and those who turn away from my sunnat do not belong to us”. (See Text I.) Hedayah quotes another Hadis on p. 1. “The Prophet has said “whoever is on {i.e. embraces) my religion and the religion of David, he should marry; if he does not possess the where­ withal to do so, he should join Jihad and fight in the way of ( i.e. to obtain the pleasure of) God." (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 as a 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 treat­ ment 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 con­ tained 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 (II ) 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 co­ habited 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 (idolat­ resses) until they believe: a slave woman who believes is better than an unbelieving woman, even though she allures you. Nor marry (your girls) to unbeli­ evers 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 themsel­ ves 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 divorc­ ed 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). Thus, in the Quran, 19 categories of women are Prohibited, and these prohibitions are contained in the following manner. The first of these verses, the verse 4.3.5, really does not contain any Positive prohibition. It merely forbids the practice (prevalent in pre-Islamic days in Arabia) of inherit­ ing the wives of the deceased, like other chattels, even against the wishes of the women concerned. Since this practice had reduced women to the level °f quadrupeds like camels, horses and asses, and was, consequently, a direct affront to human dignity, besides being in utter violation of the principle of free will of the parties to the contract of marriage, (a pinciple which was going to be adopted as one of the Rukns (C j-^J)or constituents of a valid marriage,) it had to be forbidden, and so it was done. Therefore this verse may logically be excluded from the list of what might be called prohibitory verses i.e. verses which enumerate or mention the categories of women who may not be brought into lawful wedlock by a person. Consequently, if we leave out this verse (4.3.5.) we find that each of the verses 2.27.5, 2.29.2, 4.1.3 and 4.3.8 contain prohibitions regarding one class of women, verses 2.28.7 and 2.30.3 jointly contain one prohibition; 4.4.1. contains a prohibition regarding 13 categories or classes of women, and, lastly, verse 4.4.2 prohibits 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 signi­ ficance 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). Now Nikah, 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 hus­ band). 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 / e not lawful; in other words it is Haram (unlawful). The whole of the verse 4 .4.1 and the opening Portion of the next verse 4.4.2 are governed by the word ^ which is the opening word of the verse 4.4.1 Grammatically the word is in singular number, feminine gender, passive voice of the verb '* These verses contain prohibition regarding 14 categories of women. Two points deserve careful consideration in this verse. The first is that it mentions, as the first word (*■—^ 1 ^ * (your mothers). Mufassarin j — —i—» have inter­ preted it as meaning the wives of all male roots, father upwards. Therefore it includes wives of one’s own father. But verse 4 .3 .8 . (as mentioned above) mentions them i.e. father’s wives, specifically and seperately. There the word used is ^ Since father’s wives a e placed on equal footing with 13 other categories of women in verses 4.4.1. and 2, therefore, it may be permissible to argue that what­ ever is the order regarding them (father’s wife), that very same order, impliedly, applies to the women of the remaining 13 categories. If ^ is made the rule regarding father’s wfves, the same rule should apply, mutis mutandis, to the other women mentioned in these verses, and, regarding them also, it may be said, that the order of the Quran is ^ (Do not contract nikah). I shall revert to this argument later on. Here 1 have just m entioned it. The second point is that whenever the Quran wants to lay down a positive rule, it uses unambi- guous language e.g. ^ V _ I U‘ V - I N _\y_jL^ sj ff j[ wants to make any exceptions 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 God; 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 used twice, 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 dis­ obedience, nor transgressing due limits,—then is he guiltless.” (See Text 32) Now, it is a universally accepted canon of con­ struction 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 sjL. and are derived from the same root 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 certain circumstances 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 ap ter on Moharramat” (women forbidden lo be married). “ Prohibition of Nikah is of two kinds, perpetual, and not perpetual” (temporary). “Perpetual prohibition arises from consan­ guinity, fosterage and affinity. Now those women who are prohibited on account of consan­ guinity are enumerated (in this verse i.e. 4.4.1) by God; as regards women prohibited on account °f fosterage (the rule is that the same kind of rela­ tions as are prohibited on account of consanguinity, are also prohibited on account of fosterage. Now as regards women prohibited on account of affinity; affinity springs up from a valid nikah, and also from a co-habitation, whether it be lawful, or on account of a shubh. or a pure fornication. And, now, those Moharramat who are not forbibden in perpetuity are seven in m um her ( 1) exceeding the number allowed by law; (2) conjunction of two sisters (3) conjunction of a free woman and a slave girl (4) idolatress (5) another’s married wife (6) another’s M oattada (i.e. whom her first husband has divorced and who has not completed the period of her iddat) (7) conjunction of two such females as could not have inter-married with each other, if one of them had been a male.” I have reproduced portions of the passage and have appended its translation to show (1) that the author, Kazi Fakhruddin, who, at first, was the Kazi of Damascus, and, later on, became the Kazi of Isphahan, has placed all these prohibited women in the one category of (Moharramat). He speaks 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 distinguish­ ing 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) Con­ sanguinity, (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.” Thus it will be noticed that this classification ij not mac*e 011 basis of the nature of the Llnnat, but merely for the purposes of discussion. °men occupying similar character have been ^r(Hiped together e.g. a marriage with two siters and a marriage with more than four wives are Mentioned together. Raddul Muhtar does not give any classification °f its own. It merely explains the words of Dur- rul-IVfukhtar of which it is a commentary. Fatwae—Alamgiri begins a new chapter “of women who are unlawful or prohibited: Of these there are nine classes.” Then it discusses them class by class. Its classes are as follows : T. of such as are prohibited by reason of Nasab or consanguinity. II. of such as are prohibited by reason of affinity. III. of women who are prohibited by reason of fosterage. IV. of women who cannot be lawfully joined together. V. of female slaves married upon free women. VI. of women who are prohibited by being involved in the ownership of others. VII. of women prohibited by reason of polytheism. VIII. of women prohibited by reason of property. ( IB ) TX. of women prohibited by reason of Divorce. On comparison, it is found that the classi­ fication 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.lll 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 with the cases of Jactitation of marriages. In para he describes the effects of a valid marriage. Sir Abdul Rahim merely discusses “Void and Vitiated Marriages in two short paragraphs on P-330. Nawab Abdur Rahman in Art 21 (p. 15) divides prohibitions into perpetual and temporary, and then proceeds on to enumerate “the causes that produce” perpetual and temporary prohibitions. But in his introduction (p.XII) he mentions that he has “collected the corresponding original Arabic Text in the Appendix, article by article, in order to enable the reader to go direct to the original sources without much trouble and find out for himself the true and correct law.” Now, if we refer to the corresponding Arabic Text, given on p.334, we find that lie has based his Art 21 upon Fatawae Kazi Khan. I have already discussed Kazi Khan. He is clearly classifying the prohibited w om an according to the reasons for which the Hurmat is imposed and not according to the nature of the hunncit. Sir D. F. Mulla’s Principles of Mahomedan Law 13th edition (which has been edited by Sir Syed Sultan Ahmad of Patna) divides marriages into valid, irregular and void. (Para 253 p.231). Then in subsequent paras 253-263 (p.232-235), it deals with the marriages with women beloging to different categories. According to Mulla only marriages prohibited on grounds of consanguinity, affinity and fosterage are void; every other cause of prohibition (e.g.d) absence of witnesses (2) exceed­ ing ihe perm issible 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 of high rep u te, Baillie and Amir Ali. The former published the first Volume of his work, A Digest of Mohummadan Law, dealing with the doctrines of Sunni School, in 1865, a/)(l Ills second Valume, dealing with the Imamia Law in 1874. These two parts are, in the main, paraphrases, in English, of the Fatawai Alamgiri and Sharaya-uMslam respec­ tively. Amir Ali published the first edition of his Mohammedan law in 1880. Since the time of their publications, these two works have been consis­ tently 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 captured the imagination of scholars more than these two authors. But it must be mentioned that Baillie is shining in the borrowed light of the great work he has translat­ ed 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 of portions of the Fatawai Alamgiri and the Sharaya-ul-Tslam.” and that “Tnspite of his (Baillie’s ) great erudition inaccuracies are to be found.” Later in the following para, Mr. Amir Ali opines that “The usefulness of 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 attach­ ed 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 marria­ ges, and has expressed an opinion on p. 154 that marriages prohibited only on grounds of consangui­ nity, 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 perpe­ tually 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 con­ sidered 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 Moohummud between Tnvalid and Void Marriages.” i„ Section H (p. 156-58) he deals with “The effects of Invalid Marriages.” The latter section correctly describes the effects of an invalid Marriage, and sums up the correct state of law. What is an invalid marriage is discussed by him in Section I which, in my opinion, is the least satis­ factory 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 of 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 inter­ marries with any woman that it is unlawful for him to marry, the marriage is void, according to Aboo Yoosuf and Moohummed” as she is of the “Muhra- mat,” he proceeds on to argue that “This term {i.e. Muhramat) js synonymous with “Mooharim” both being the plural form of the same singular “Muhramut” it might be fairly inferred that it was only of the “Mooharim” rJ ^ that the author of the Hidayah meant 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 know­ ledge. He is wrong when he says that Muharram at is the regular, and Mooharim, the irregular plural of Muharumut. Tn fact Moohraim is the plural of Muharram whereas Muharramat is the plural of “Muharumut. Muhar­ ram is the masculine whereas Muhrumut is the feminine gender. The last letter or ° is what is called ^ or the suffix which witt HOflWl h W l) Of Did msculine gender into one of the feminine gender. It is, therefore, a philological inaccuracy to say that ^ (Mooharim) is the 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 this philological mistake, and, substitute the word Muhrumat for Mooharim this difficulty arises that Baillie himself is admitting (on p. 152) that “the word Muharumat is sometime applied to all women who are unlawful or prohibit ed to a man, i.e. he himself admits that the word can be. and is, applied to women who are merely temporarily prohibited. Earlier on the same page (p. 152) he himself mentions that the opinions of Abu Yusuf and Mohommad (that whenever a Muslim marries a woman who is unlaw­ ful to him because she is not a fitting subject of marriage) are based upon the fact that she belongs to the class of and, in order to get over this difficulty, he does two things, ( 1) he makes the philo­ logical mistake (shown above) of treating both and ^ as applicable to females, and (2 ) he gives to the latter word ^ a technical meaning which it is not capable of. In fact, the true position is this. In Shariat, every thing which is prohibited is called Haram. Thus the flesh of pig is haram; Wine is haram, Zina is haram, marriage with mother is haram and and so on. The collec­ tive name given by Shara to all things which are made Haram. is ?j ^ This word includes every­ thing which is haram. Naturally the word f j ^ will also include marriages with women who are prohibited. This is the general term which includes every kind of prohibition. As regards the parti­ cular prohibition regarding marriages with certain classes of women, the word which has come to be associated with this kind of is since the Quran 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/ - /.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 of the Fatwae 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 Fatawae Alamgiri were inclined towards the opinion of Abu Hanifa, and, that this inclination on their part gives additional weight to the opinion of Abu- Hanifa, and that this fact “should be decisive of the question in India,” i.e., in India, the opinion of Abu Hanifa 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 made this deduction the ground for the opinion he has thus expressed in the last clause of the sentence. He means to suggest that even if the view of Abu Hanifa was not accepted in India before the compilation of the Fatawai Alamgiri, it should be accepted now because the compilers of 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 com­ paratively. 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. What is accepted as law, either in India, or in Egypt, or in Morocco will also be accepted as such, in other parts of 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 of 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 of Abu 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 referr­ ed 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 “The status of Marriage” in Ch. VI ofVoll II (p.315 and onwards). He divides the chapter into Sections. In Section II (p.322-332) he discusses ^The |egai disability to marriage) Outright he proceeds to say “These Prohibitions may be divided under four heads, viz. (A) Absolute, (B) Relative, (C) Prohibitive, and (D) Directory. ’ Under Absolute, he places prohibi­ tions which arise from consanguinity, affinity and fosterage. On p.326, he lays down that a marriage contracted within the prohibited degrees is null and void. Under Relative prohibitions, he places the cases of (1) Contem poraneous marriages with two women who stand to each other within prohibited degrees, incl uding, in this group, of course, marriages with two sisteis. (2) Marriage with a fifth wife in the presence of four wives. (3) A free wom an marrying her own slave. (4) A free man marrying his own slave woman. (5) Marriage with a polytheist. Under Prohibitive incapacity, he places ( 1) marriage with a married woman (2) marriage with a woman who is in iddat (3 ) marriage of a mu slim woman with a non- muslim. Under Directory prohibitions, he places. (1) Marriage with a pregnant woman. (2) Re-marriage with a woman divorced by la’an (but only according to Shias, Shafeis and Malikis). (3) Marriage during Ihram (according to sha­ feis, 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 “Prohi­ bition.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 dura­ tion, into and °(perpetual 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 Hurmat. 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 “Temporary” on the other, because these words have acquired, more or less, a technical meaning when used with reference to the Muslim marriages. Dur-rul-Mukhtar merely says, “The causes of prohibitions are of various kinds,” (Text 36), and then he begins to discuss them under 10 headings. Fatawae Alamgiri says that there are 9 classes of women who are unlawful or prohibited, and each class is discussed in it seperatelv. Quran has expressly prohibited marriages with 19 classes of women. Of 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) Mother (2) Daughter, (3) Sister, (4) Father’s Sisters (5) Mother’s Sisters (6) Brother’s Daughters and lastly (7) Sister’s Daughters. As regards these seven classes of women, there has practically been unanimity among all jurists, of all ages, with the single exception of Abu Hanifa, that they are totally and perpetually prohibited. For 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 Women related by fosterage” consists of two classes of women (1) Foster-Mothers and (2) Foster Sisters. The third gorup, to be here-after referred to as “women related by affinity” consists of (1) Wives Mothers (Mother-in-law) (2) Wives’ Daughters (Step Daughters) (3) Sons’ Wives (Daughters-in-law) (4) Father’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 of 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 co­ habited 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, (Note—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 Quran; but, strangely enough, it is not discussed by any author, either old or new. Probably the reason is that 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 in the Quran. “ Let no man guilty of adultery or fornication marry any but a woman similarly guilty, or an unbeliever; nor let any but such a man or an unbeli­ ever marry such a woman; to the Believers such a thing is forbidden” . (Text 15). Thus, a marriage between two Muslims is forbid­ den, 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 state­ ments. 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 prohi­ bition.

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 con­ flict 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 punishment, when he marries the woman, being aware of the illegality, because, as the contract has not been executed in regard to its proper subject, it is, of couise, void; for here the woman is not a proper subject of marriage, because the proper subject of maniage, or of other deed, is a thing which is a proper subject of the effect of such deed; now, one ol the cflects of marriage is the legalising of generation; but as the woman is among those who are prohibited to the man, the contract of marriage with her is consequently nugatory, in the same manner as a contract of marriage between man and man. The aigument of Hanifa is that the contract has taken place in regard to its proper subject, as the woman is a proper subject of marriage, because the proper subject of any deed is a thing which admits of the ends intended being obtained from it. Now the end of marriage is the procreation of children, and to this every daughter of Adam is competent; the case therefore admits of the contract being engaged in with respect to all its effects, and of all its effects being obtained from it; but on account of the prohibition in the sacred text, the legalisation ot the generation is not obtained; and such being the case error is occasioned, as error is a thing which is the appearance of a proof, and not the substance of one; and as, in the present case, the man has perpetrated an offence for which the stated punishment, or hudd is not appointed, Tazeer, or discretionary correction must be inflic­ ted.” Imam Abu Hanifa is one of 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) Noman 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) Yaqoob Bin Ibrahim (Imam Abu Yusuf) was born at Baghdad in 113 A.H, and died there, in 182 A.H. (4) Abu Abdoolla Mohammad Bin Husain (Imam Mohammad) was born in 132 A.H, and died in 179 A.H. (5) Mohammad Idris (Imam Shafei) was born in Palestine in 150 A. H, and died at Cairo, in 204 A.H. (6) Abu Abdulla Ahmad Ibn Hanbal (Imam Hanbal) was born at Baghdad in 164 A.H, and died there, in 241 A.H. This chronology will show that, with the excep­ tion of Imam Hanbal who survived till about the middle of the third Century A.H., all others lived in the second century Hijri. This age, in Muslim Jurisprudence, may be compared with the age of Jurisconsults, in the Roman 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 of lstehsan t]ie doctrine by which, in Muslim 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 prac­ tical 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 of 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 obli­ gatory, 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 punish­ ment 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 universally understood where such conjunction takes place devoid of property, either actual, or erroneously supposed” (Hamilton Vol. II p. 19). The term Zina was so circumscribed that ultima­ tely it was confined to a sexual co-habitation with a living, sane, adult woman who is in her senses, and commits the act with her free volition, provided it is not done in an enemy country s It is laid down in Fatawae Kazi Khan : “If a sane adult commits Zina with a child, or an insane woman, or with a woman who is asleep, Hudd is to be inflicted upon the man, but there will be no hudd for the woman.” The same rule is laid down in Kifaya. p. 587 (See Text 42). “ If a woman commits Zina against her will, there is no hudd for her according to all jurists.” (See Text 40). “If a man commits Zina against his will, there is no hudd for him, according to the views of Abu Hanifa and his two disciples.” (See Text 40). “ If a man commits Zina with a dead woman, there is a difference of opinion; according to Medinites (Jurists of Medina) he is to be punished with Hudd, but, according to Basrites (Jurists of Basra), there is no hudd for him, but he should be awarded some lighter punishemnt.” (Text 45). (Hedaya p. 593) “If a man commits sodomy with a woman who is not lawful to him, (outside her vagina), he should merely be punished.” (See Text 43) “If one commits the unnatural act upon a beast, there is no Hudd for him.” (See Text 44). “If one commits Zina in a hostile country j ' or and then comes to us (i.e. migrates to a muslim country no hudd is 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 of Zina, then a terrible punishment awaited the Zani. The Quran has two verses regarding punish­ ment 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 matter prescribed by God, if ye believe in God and the last day: and let a party of the believers witness their punishment.” Quran (Text 46) This punishment is prescribed for free persons. For slaves, both males and females, the punishment is reduced by half, according to another verse, dealing with marriages with slave girls. “When they are taken in wedlock, if they fall into shame, their punishment is half that for free women.” (Text 47) This verse deals with the case of a married slave, but it has also been applied to the case of an un-married 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 commentary of 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 ) of the Prophet, that it is not lawful to take the life of a Muslim, except for one of these three reasons: (1) apostacy after Islam, (2) zina after marriage and (3) murder of 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 com­ panions 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 adul­ terer 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 punishment for zina, which is responsible for the evolution of the doctrine of Shubh. Leaving aside Rajm, even the method of scourging was such that the person most often died, because it would conti­ nue, untill the adulterer had received the requisite number of 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 of 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 scourg­ ing) if the sexual intercourse took place under the sanction of (1) marriage, or (2) Milk, (possession) or under (3) shubh. This word shubh has been translated as “Error” by text writers, but the literal meaning of the word is “Doubt.” The word “Doubt” is more suited to bring into prominent relief the basic and the underlying idea of the legal conception expressed by the word “Shubh.” In Ata Mohammad Choudhury v Saiqul Bibi (1910) 7.1.C.820, Karamat Husain J. has also preferred this word (Doubt) to “Error.” 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 time-honoured practice, for the sake of brevity. Accordingly, Muslim Law, like every other sys­ tem of Law, divided women into two categories : (1) Those with whom marriage was lawful. (2) Those with whom marriage was unlawful, The Shia jurists stuck to this division, and held that 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 that 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 of 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 of shubh or “Doubt” was evolved and developed. In modern jurisprudence a mistake of fact may be a good defence, but a mistake of 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 of law, if bona fide, can only be considered in miti­ gation of his sentence, but it can never absolve him from his guilt. If a person has unconsciously been guilty of the breach of some provision of 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 many persons as possible, from the terrible punishment of 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 of Zina was not complete, and should, on that ground, acquit him. In other words, in the vast majority of 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 of doubt to the accused, who would, consequently, escape the infliction of Hudd. Since this doctrine of “Doubt” was evolved and developed to save a person from Hudd, it is discussed by authorities (ancient texts) in Chapters on punishments. See Hedaya Vol. II, pp. 586—588; Kazi Khan Vol. 11 pp. 406—407 Ruddul Muhtar Vol. Ill pp. 231—-334. Imam Abu Hanifa goes furthest in the matter of giving the benefit of doubt 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 of two kinds : (See Text 50) (1) (t) J or 34-^” i.e. a doubt in the Act. This arises in those cases in which a man mistakes an illegal carnal conjunction for a legal one. To constitute this kind of doubt, it is necessary that the mistake should have operated in the mind of the accused who is, consequently, under such a misapprehension. It is not in every case that 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 of 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 of 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 compensa­ tion, and who is in her iddat”. In Ata Mohammad 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 under any one of these eight categories, will escape the Hudd, provided he declares “I conceived that this woman was lawful to me.” If, on the other hand, he admits that he knew that the woman was unlawful to him, he will incur Hudd. The reason why the existence of 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 doubt in his mind. Buhr in Vol. V.P. 15 says “ Here the punishment is dropped by the mercy of God who forgives the error of the man. It is not dropped in consequence of the woman being unprohibited, as she is undoubtedly prohibited. Because she is prohibited, Nasab (parentage) of the child will not be established, even if he might claim the child, nor will iddat be incumbent upon the woman, and the parties will have to be seperated” . It will be seen that 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 of law, which supports lawfulness. The man mis­ takes that for an authority which is no authority. For instance, he may suppose that sexual intercourse with the slave girl of his father, mother or wife, is lawful because he supposes it to be one of her services to which he is entitled. Similarly, he might be in doubt regarding the lawfulness to him, of his thrice- repudiated wife who is in her iddat; because, he might suppose that he can take her back before the expiry of her iddat, as he can do in other cases of divorce. Similarly, a male slave might think that he possesses a right of co-habitation with a female slave, if they are both under the “Milk ( ) or ownership of the same master. The pledgee may, similarly, be in doubt regarding the nature of 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 there­ fore, 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 of the woman, would not follow. Another important thing should be noticed. The mere ipsi dixit of the man is considered sufficient. No external evidence was allowed to be admitted to disprove his statement. (2) ti or i.e. a doubt in the 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 of 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-Muhtar 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 of annulling it (with respect to the vendor). (10) A slave girl who is the foster-sister of 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 of this list, it will appear that the cases of “ Doubt,” 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 woman” the doubt arises owing to the existence of some authority which negatives the unlawfulness of 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 man knows the sexual connection to be unlawful, or, supposes it to be law­ ful, because, in consequence of the existence of the authority, the doubt exists, in reality, in the lawful­ ness or unlawfulness of the act. ft is equally imma­ terial, 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 whore­ dom, under any circumstance e.g. even when the man 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 matter of 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 woman 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 of Shubh-Fil-Mahal, the position of 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. No great complications could, or did, arise in the Sunni Law of Marriage, because of these two kinds of Doubts. All the complications and uncertain­ ties, in the law, are the result of the third kind of Shubh which was formulated and propounded by Abu Hanifa. Imam Abu Hanifa was of the opinion that “Doubt” is of three, and not only of the two kinds mentioned above. This third category of doubt, he called Jk—■ f marriage (2) because ihe proper subject ol any deed is a thing which admits of the ends intended being obtained from it, (3) the end ol' every marriage is the procreation of children, and (4) to this every daughter of Adam is competent. Therefore, the case admits of the contract being engaged in, with respect to all its effects, and of all its effects being obtained from it; but on account of the prohibition in the Quran, the legalization of the generation is not obtained, and such being the case, error is occasioned, as error is a thing which is the appearance of a proof, and not the substance of it, and as, in the present case* the man perpetrated an offence for which the stated punishment or Hudd is not appointed, Tazeer, or a discretionary punishment, must be inflicted.” Accordingly, in the view of Abu Hanifa, whenever a contract of marriage takes place with any woman, whatsoever, the Hudd drops (a) whether the m arriage is lawful or unlawful, and (b) whether there is a consensus of opinion as regards to its unlawfulness, or, there is a difference of opinion among the jurists on this point (i.e. on the point whether it is lawful or unlawful), and (c) whether the man knows it to be unlawful, or, does not know it to be so. The man will have to pay full dower to the woman, whatever it might be, if he co-habits with her. II. The views of Abu Yusuf, Mohammad and Shafei. “The man 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, of course, void; for, here, the woman is not a proper subject of marriage, because the proper subject of marriage, or of any other deed, is a thing which is a proper subject of the effects of such deeds; now, one of the effects of marriage is the legalising of the generation; but, as the woman is among those who are prohibited to the man, the contract of marriage with her is, consequently, nuga­ tory, in the same manner as a contract of 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 co­ habits 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, unknowing­ ly, 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 not? The answer to this question depends upon a further question. Is the marriage contracted with a woman who is a “Mahal” / e. a “ fitting subject of 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 of 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 marriage” 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 of marriage” 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. What emerges from a recital of 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) Abu Hanifa, in calling her a “fitting subject of marriage,” intended to say that she was a fitting subject of marriage in the abstract, and not with reference to the particular man 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 man.” 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 Fatwa is according to the views of Abu Yusuf etc, on the ground that a doubt is possi­ ble only when the lawfulness of the sexual intercourse is possible, in any way, (because it is the lawfulness of the sexual intercourse which should be in doubt), but the lawfulness of the intercourse with her is not proved in any way. If 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. That being so, the term “Nahi” (prohibition in God’s command) “Do not marry those women who were married by your fathers,” is a metaphor 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 of a prohibition is unlawfulness, ( ^ ) “Hurmat,” 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 of 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. procrea­ tion, may, with perfect logic, be pushed one steo further. ^ If the main, or the sole, object of the crea­ tion of “Adam’s daughter” is procreation, why must there be the intermediate link of a farcical ceremony of marriage at all. If a man can, with perfect impu­ nity, 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 make 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 inter­ course with any woman he likes. (2) If the question of a woman being a “fitting subject of marriage” is to be considered in the abstract, and not with reference to particular indivi­ duals, 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 of 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, or; 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 of her creation (i.e. procreation). In fact, Abu Hanifa has lost sight of the dis­ tinction 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 of 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 of 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 of 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, by his 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 of complication in the Law of Marriage. This doctrine of Shubh, and still more, its division into the two catagories mentioned above, made the Mus­ lim Jurists familiar with the notion that there might be forms of marriages which were neither entirely Sahih, (i.e. such as were capable of producing all the legal consequences of a marriage), nor entirely Batil (i.e. such as were entirely devoid of all such consequ­ ences). 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:

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a -t*J I U.^Lc. (j j ;>—> 3 A little later he writes 1 J I—a- I t=5C_) o \ ^—0 I r- ^ 3

“Unlawfullness (Hurmat) may be taken to mean “butlan” ( )y the state of being batil, or fasad ( )f the state of being faisd, for there is no difference between them in a marriage, as has been stated in the majority of reliable works. Therefore, the statement made in the Imadi that they differ as to a marriage with the maharim, some holding it to be batil, and others holding it to be fasid, is not free from difficulty” (See Majmaul Anhar 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 regard­ ing 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 Muhtar 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 intro­ duced 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 of 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 atta­ ched to them, the Muslim Jurisprudence was evolv­ ed 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 unques­ tionable, and as one which had to be accepted with­ out any argument. If any portion of their writings was illogical or difficult to understand, their follow­ ers 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 commen­ taries on books, then commentaries on those com­ mentaries, 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 commenta­ tors 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, one of the other, until the main work was safely consigned to the nook of oblivion. The same thing happened in the Muslim world, but in another way. Hach commentator would explain and illustrate the words of the book, of which he was writing the commentary, and try to justify every expression of opinion found in his text. This mentality of the commentators is responsible for the introduction of a sort of dialecticism in the Muslim Jurisprudence, and for the perversion of many of the salutory rules thereof. After the acceptance of the notion of an inter­ mediate class of marriages which fell short of the requirements of a valid marriage, but which were not entirely devoid of all effects and consequences there­ of, the jurists began to call such marriages by the technical name of Fasid marriages, as opposed to Batil marriages which were devoid of all such con­ sequences. When the 19 classes of prohibition were e x a m in e d and analysed, it was found that they in c lu d ed ( 0 some classes of women who were per­ manently prohibited i.e. women in respect of whom the prohibition whould attach all through their lives, and was incapable of being removed under any circumstances whatsoever; and that there was (2) another class of women who were temporarily prohibited i.e. women in respect of whom the prohibition was capable of being removed, on the happening of some event. At first, all marriages which were not Sahih, i.e. valid in all respects, were indiscriminately called Batil or Fasid. The verbs a----* - J_k_ ^ and, their nouns, were applied to them, without the assignment of any technical meaning to any of these words. But the later commentators began to distinguish between these two words, and, conse­ quently, these words assumed their technical mean­ ings. After this technical meaning had been assign­ ed 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 accor­ ding 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, ve 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 of permanently prohibited women and temporarily prohibited women) jointly contributed to the introduction of a new terminology. Some authors applied the term “Batil’1 to the permanently prohibited marriages, and the term ‘‘Fasid” to those marriages which were temporarily prohibited. The application of this new nomen­ clature is responsible for all the confusion which has crept into this branch of law. SECTION XI

Classification of Prohibited Women

Now let us take stock of 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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_ G . 0 5 c,« < r t/3 o ~£ - s a ■) ■ OT 55 U k o u <*> « C/5 c ( i , r» •— D Oh O ctf Uh Q u (11 r. U U JP « a As regards these prohibitions, Abdul Rahman states, in Art 20, page 15, as follows: “For the vali­ dity 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 temporary,” In other words, he puts both these categories of prohibitions on the same level, qua, the validity of the marriage. The same is the opinion of the author of Dur- rul-Mukhtar as given in Raddul-Muhtar Vol. II p.984. It is as follows : “ Whenever it is unlawful that a woman should be married to a man, it be­ comes necessary that 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, of four women in addition to the wife.” All jurists are unanimous in holding that a marriage with a woman belonging to the first cate­ gory (i.e. permanently prohibited women) is Batil i.e. null and void, and does not give rise to any legal incidents of a valid marriage. A sexual co-habi- tation with such a woman, even under the colour of a so-called marriage, is Zina, an absolute whoredom. The woman will not be entitled to any dower, nor will an iddat be incumbent upon her. The child of such a union will be illegitimate, and can not, under any circumstances, whatsoever, be legitimised. The view of Imam Abu Hanifa has been finally and absolutely discarded. The fact that the prohibition regarding a wife’s daughter is qualified, and not absolute, and springs up, not upon marriage of her mother to the man, but 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 of 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 Moattada In this connection the term («■*=*-») is used to denote two classes of women : (a) Those who have been divorced by their previous husbands, and who have not completed their periods of Iddat. The prohi­ bition with respect to them, lasts only so long as they do not complete their periods of iddat. There­ fore, 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 with them (4) then those persons divorce them (5) and, lastly, they undergo a period of iddat. (2) Marriage with a married woman. In her case, 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 enemy country ( j 1 because her case is absolutely distinctive. (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 cate­ gories of 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, simul­ taneously, marry a woman and the daughter of 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 remov­ ed by the man 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 instruc­ tive 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 of women (i.e. in verses 4.4.1 and 2) : seven of them on account of Nasab, and the other seven, on grounds other than Nasab (Tex 94).t (2) Hedayah gives no classification, but pro­ ceeds 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. Permanent prohibitions arise from consanguinity, fosterage and affinity; and those Moharramat (prohibited women) whose prohibition is not of a permanent nature are seven in number.” 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 dif­ ference in the resulting incidents of a union with women of the two classes mentioned here. (4) Durrul-M ukhtar says (See Text 36). “Causes of prohibition are several: Consanguinity, Affinity, Fosterage, Conjunction, Ownership, Polytheism, and marrying a slave girl upon a free woman. Thus they are seven. The author has discussed them in this very order. There remain the cases of thrice-divorced women, of married women, and of those who are observing iddat on being divor­ ced by another man. The author 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 Muhtar (commentary of Dur- rul-Mukhtar). It explains the three terms U=-> and then adds j ^And these three are prohibited for ever. It then proceeds to discuss other cases. (6). Abn Arabi quotes Ibn Abbas as follows : (Text 54). Ibn Abbas says that in this verse (4.4.1 and 2), God has prohibited seven (classes of woman) on account of Nasab, and seven on account of Affinity. (7) Fatawae Alamgiri has a new chapter on “Women who are unlawful or prohibited : Of these there are nine classes.” Then it deals with all these classes, one by one. These classes consist of women prohibited by reason of (1) Nasab (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 pro­ hibited 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 per­ missible, 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 co­ habitation, under the guise of such a marriage, should render the parties to Hudd, if the act is done knowingly. In the case of women who are not permanently prohibited, the position, in the opinion of this school, is different. There the prohibition is merely temporary, and is due to some accidental cause. The removal of this cause will change its effect, and the prohibition will be washed out. Therefore, in its essence, this prohibition {i.e. the temporary one) is different from the other kind of prohibition (i.e. the permanent one). A marriage, in this case, may be improbable, but it is not impossi­ ble. Therefore, if some such marriage is, in fact, contracted, it will not, and can not, partake of the nature of a marriage with a permanently prohibited woman. Even if it is prohibited today, it may become permissible tomorrow by the change of circumstances. Therefore, it should not be treated as entirely and absolutely null and void ab initio. Such a marriage should be discouraged, but if, in fact, it has been gone through, it should be allowed to produce some legal results. In other words, this school applied, to this kind of marriage, the doctrine of factum valet, in a modified form. Now, since the jurists of this latter school, gave an intermediate position to marriages with women who were temporarily prohibited, and placed them in between marriages which are either absolutely Sahih or absolutely null and void, and since they had become acquainted with the new terminology of Sahih, Fasid and Batil marriages, they began to apply the term fasid to a marriage with a woman who was temporarily prohibited. The next step was that when the word “Fasid” was given a technical meaning and a “Fasid Marriage” was held to produce certain legal consequences, the same legal consequences were allowed to flow from a marriage with a temporarily prohibit­ ed woman when a marriage with her was given the appellation of a “Fasid marriage.” 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 Quran, or, by some authentic Hadis, but which were considered defec­ tive, on the ground that they contravened some salutary provisions of the general law e.g. (a) The marriage of a minor contracted without the consent of his lawful guardian. Such a marri­ age is valid, though it depends, for its operation, on the consent of his guardian which, even if given ex post facto, will retrospectively validate the hither­ to defective marriage. (b) Similarly, the marriage of a slave depends, for its validity, upon the consent of his or her master, and, in the absence of such a permission, it is defective. Absence of the requisite consent in the afore­ mentioned two kinds of marriages will create in them a lacuna which will make 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 Arabi had perhaps a similar idea, at the back of his mind, when he wrote. (See Text 55). “The fact remains that, in respect of a Nikah-i- Fasid, either the jurists will be unanimous on the question of 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 of 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). Whatever be the origin of this term “Fasid,” and whatever be the circumstances under which it came to be applied to a marriage with a temporari­ ly 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 that the husband was bound to pay dower to the woman, if he had enjoyed her, the woman 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 “Temporary Prohibition.” Their arguments are as follows : (1) The distinction between “Permanent Pro­ hibition” and “Temporary Prohibition” merely gives prominence to the fact that, in the case of permanently prohibited women, the physical con­ ditions 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 temporary 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, of lawfully marrying her, if he waits long enough; whereas, in the first case, he has no such chance. (2) The distinction between “Permanent Pro­ hibition” and “Temporary Prohibition” is not, and cannot, be intended to imply that the legal result of 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 of cases, legal prohibitions are based on physical conditions that change; and a possible change in them cannot alter the con­ sequences of the prohibitions. This proposition may be illustrated by very many 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 of a change in her physical condition, in futuro, (her marriage with the man in question) will not. and can not, change the effect of the prohibi­ tion, in praesenti, and the mere fact that she may be married, in futuro, will not take away anything from her Hurmat, 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 temporary 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 of 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 co­ habitation 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 influ­ ence such a determination. 7 i. (4) Again, it is pointed out by the adherents of this school that, if the temporary character of the physical conditions, on which the prohibition to marry a woman is based, were sufficient to make 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 of a union between H and W be held legitimate, though such a union is unlawful, in praesenti, by reason of a mere possibility of a marriage between H and W, in futuro, on the occurrrence of a succession of con­ tingent events., To hold such an issue legitimate will be absolutely contrary to the basic principles of Muslim Law which goes to the extent of 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 of 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 whoredom on a free woman and then marries her” Bhar-rur-Raiq Vol. V p. 21 says. “It is stated in Jamai Kazi Khan : If a man com­ mits whoredom on a free woman and then marries her, punishment is not dropped according to all.” Fatawai Alamgiri Vol. II p. 151 says. “ When a man commits whoredom on a slave girl and then purchases her, the authentic report is that 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 commentary on the Book on Punish­ ment.” Therefore, if a subsequent marriage between the parents of the child cannot legitimise the issue of an antecedent Zina, it will violate every rule of logic to hold that the mere possibility of a marriage between the parents would do so. The contrary view will, in plain words, amount 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 legiti­ mate, because the parents have thought fit to commit a fraud upon Law, and have violated the sanctity of its rules. Such an argument will, to borrow a geometrical expression, amount 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 permanently prohibited and those who were temporarily prohibited. He held that a marriage with a woman of either category was merely fasid and not batil. This goes a long way to prove that, in his opinion, the permanency or non-permanency of the physical conditions on which the prohibition is based does not determine the character of a defective marriage. What makes a marriage void is that the woman 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 of two sisters, in one and the same verse of the Quran, by one and the same mode of prohibition, is a conclusive proof of 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 not marry) is used in respect of both of them. It is worthy of special notice that all those authorities who hold marriages, with temporarily prohibited women, merely fasid, and not batil, 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 of the Quran. They never care, or dare, to give any interpretation of the Quranic verses which will support their contention. As against this, the other school, which holds the view that a marriage with any woman who is prohibited by Quran, is absolute­ ly null and void (Batil), bases all its arguments upon the Quranic verses. Baillie in the whole of his Ch. VIII Book I does not refer to the Quran at all. Amir Ali, in his Ch. VII, in which he discusses Batil and Fasid marriages discusses a number of ancient authorities on pp. 392-7, but strangely enough never once refers to the Quran. CHAPTER I

C o n ju n c t io n of t w o sisters in m a r r ia g e .

Now 1 shall discuss the cases of those classes of women in respect of whom there is a conflict of 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 mothers...and that you called together two sisters.” (Text 5). (2). Hadis (Text 56). “ Whoever believes in God, and in the day of Judgement, should not put together (i.e. put at the same time) his water (i.e. semen) in the womb of two sisters i.e. he should not have carnal connec­ tions with two sisters simultaneously.” Hedaya Vol. II p. 12.) (3) Tafsir Kabir Vol. Ill 182. (Text 96). “ Verily the verse is in the passive voice, so that, there is no mention in it that the subject (

“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 explana­ tions.” “First explanation. God’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 to you are your mothers, your daughters and a junction between sisters.” “Second explanation : A conjunction between sisters takes place in three ways : (I) either they are 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 of 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 of 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 of selection presumes a previous marriage, and its continuity up to the time of selection, and we have already explained its invalidity. So that, nothing remains, except the law that, in case * of 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, preven­ tion is better than cancellation.” “And if we look for the opinion of jurists, it will be found that it is lawful to hold two sisters in owner­ ship at the same time, but, if a sexual intercourse is held with one of them, a sexual intercourse with the other one will not become lawful, unless and until the right of enjoyment over the first is removed’ either by selling her, or, by making a gift of her to another person, or, by making a contract with her or by giving her away in marriage.” “Shafei says if a Kafir 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 the order 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 that it does not result in conjunction (of two sisters in marriage), so that it becomes essential that there should exist no prohi­ bition. We say (Shafei says, our argument for this statement that there is no conjunction) that there will be no such conjunction of sisters in marriage, because, the Nikah of the divorced woman is non­ existent; and the proof of this fact (non-existence of her nikah) is that it is no longer lawful for the hus­ band 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* con­ junction 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 mainte­ nance, 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 con­ trol the woman, on account of Nikah, because the “tali” # o^JI ,> does not result in proving the existence of (which here is (C£JI ^ To give the right to keep the woman in control, ilftci the dissolution of Nikah, by some means other than Nikah, is reasonable, but to assert the existence of Nikah, 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 of which is patent to reason.” The following points emerge from the above extracts. According to Imam Razi. (1) In verses 4.4.1 and 4. 4.2 God has prohibited 14 classes of 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 of a marriage with them is concerned, Imam Razi puts all these 14 cases exactly on the same level. (4) He considers the phrase as a predicate of the verb as if, the whole verse were 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 words a- merely indicate the persons who are prohibited to be joined together. (5) This conjunction of two sisters may take place in three ways : (A) When one marries two sisters. This again is of two kinds : (a) Where the marriage with the two 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 that the first marriage is Sahih, but- the second marriage is batil. In this latter case, he mentions the case of the marriage of a ‘Kafir’ 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 separa­ tely, 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 ^ ^ Jjo

predicate ( j ), and is governed by the word °LJ/ ' ,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 was married 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 of law is that, according to the author of 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 contracted simultaneously, and it is not known which of them was 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 the order 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 defini­ tely 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 (invalidity) of 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 liabi­ lity 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. For the same reason, the extent of the husband’s liability will also be determined by law, on equitable grounds. (3) Kifayah, like Tafsir Kabir, says that the phrase ol is the predicate, and is governed by the verb and that the text should be 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 Mahal (fitting subject of 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 woman is in the position of a woman with whom sexual intercourse has been held. He cannot (if hejias 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 inter­ course with two sisters, at one and the same time. (5). Fatawai Qazi Khan Vol. 1 p. 167-9. (Text 35) “The prohibition on marriage is of two kinds, permanent and non-permanent. Permanent pro­ hibition results from consanguinity, fosterage and affinity...and the Moharramat (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 marri­ ed 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 Khan proceeds on to say that if one co-habits with one’s wife’s sister by mistake, such a sister must observe iddat and the man should not co-habit with his wife until the expiry of her sister’s iddat. Then Qazi Khan mentions the case of purchas­ ing two sisters as slaves, and gives the same opinion as is mentioned in Tafsir Kabir. Then Qazi Khan 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 that the separation takes place before co­ habitation), he can immediately marry, again, either of them. If a man marries two sisters, and, conse­ quently, 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 of them (immediately). But when the iddat of one is com­ plete, it will be lawful for him to marry the other sister (whose iddat is not complete). If one marries a woman, 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 woman with whom the Nikah is Batil), he can not have sexual intercourse with the first woman (with whom the Nikah is sahih) until the iddaffof the second woman expires.” Then he discusses the case of two sisters who are joined together, one in Nikah, and the other in Iddat. “If a person marries a woman whose sister is in iddat, either on account of an irrevocable Talak (given by this very person), in the case of a valid marriage, or, on account of 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 Khan places all the Moharramat on the same footing, and does not suggest that there is any difference between them, so far as the nature of the Hurmat 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 simul­ taneously, the marriages with both the sisters are batil; if, on the other hand, they are married succes­ sively, 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 simultaneous­ ly, so that their marriages become defective, and the man separates from them before he has co-habited with either, he can immediately marry either of them, by a fresh contract of 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 of them, until their iddats expire. If the iddat of one has expired, but not of the other, he can marry the one whose iddat has not expired, (4) If 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 Nikah 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 previ­ ous husband. (6) Dur-rul-Mukhtar p. 300 (Text 36). “The causes of prohibition are many: consangui­ nity, affinity, fosterage, collection (or conjunc­ tion), 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 Moharim is prohibited in a valid marriage 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 of relationship, that, if one of them be supposed to be a male, she may not be lawful for the other one, at any time.” Dur-rul-Mukhtar from Rudd-ul-Muhtar (310) (Text 59). “And 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 them; 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 of them together (that is, at once), then the result of 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' (conjunc­ tion), of which, a marriage with two sisters is one of 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-Mukhtar, as in Ruddul Muhtar 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 “Twenty/’ and they are mentioned in the Khazana. The sum and subs­ tance 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-Muhtar on p. 985 explains the word “Twenty” as follows : I have put them in groups, for the sake of clarification. • Group A. l-4-(l) Father’s sister, (2) mother’s sister, (3) brother's daughter, (4) sister’s daughter.

Group 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) Marriage with an infidel Woman. ( n o )

Group 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 Mookatuba by her mowla, until she becomes incapable of earning her freedom. (19) Marriage of a Mookatuba 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. From this list it will be seen that, in Rudd-ul- Muhtar, the marriages with the women in Groups A (who are permanently prohibited) and B (who are not permanently prohibited and whose marri­ ages are called Fasid by Baillie and Amir Ali) are put exactly on the same level. Dur-rul-Mukhtar 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 condi­ tion precedent—removal of the bar of prohibition— is first fulfilled. The marriage can not precede the fulfilment of the condition, nor can it be contract­ ed 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 con­ tract, 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 bet­ ween 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, Later on, at p.380 of Vol.II, the author of Rudd- ul-M uhtar expresses an opinion which has been very much discussed. But to explain it properly, it is necessary to give its back-ground. Rudd-ul- Muhtar is a commentary on Dur-rul-Mukhtar which, in its turn, is a commentary on Tanweer-ul-Absar. As is the practice of the writers of commentaries, each commentator ex­ plains the words and phrases of the text, of which he is writing the commentary. Therefore, it is necessary for properly understanding the passage, to refer to the original text of Tanweer-ul-Absar, then to that of its commentary Dur-rul-Mukhtar and then to come to Rudd-ul-Muhtar. (1) Tanweer-ul-Absar. In discussing the liability to pay dower it says : (Text 61). “Customary dower becomes due in a Fasid marriage by co-habitation, not without it.” (2) Dur-rul-Mukhtar 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 neces­ sary for the validity of the marriage, for instance, witnesses.” (3) Now, Radd-ul-Muhtar, in its turn explains the words used in Dur-rul-Mukhtar. See Vol. II, p. 574. It begins with the explanation of the word (Text 63). “The expression, “e.g., witnesses, and similar to it,” is the marrying together of two sisters, and marrying a sister during the iddat of another sister, and marrying a woman 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 Muhit (giving an instance of an invalid marriage) says: “A Zimmi marries a mus- lim woman; seperation shall be effected between them, because the marriage is an invalid (or fasid) marriage.” “The apparent inference from the language used in the Muhit is, that they shall not be subjected to punishment (or hudd), and that nasab is also estab­ lished 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 that the commentator (that is, the author of the Dur-rul-Mukhtar, who has written the commentary on the Tanweer-ul-Absar) shall presently state towa­ rds the end of the section dealing with the establish­ ment of 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 quotation from the Muhit). This thou shouldst understand. And the object (of the author of Dur-rul-Mukhtar, in citing the passage from the Majma-ul-Fatawa) 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 muta marriage, it is laid down that there is no difference between them in the case of sale. Yes, in Bazzazia, two views are reported on the question whether the nikah of the maharim is fasid or batil.” “And it is clear that the meaning of batil is a marriage the existence of which is like its non-exis­ tence, and for this reason, nasab is not established, nor iddat either. In the chapter on the marriage of the maharim, (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 of the maharim, a compulsory marriage on behalf of the woman and a marriage without witnesses: and as regards the compulsion being exercised on behalf of the woman, I have already written a disquisition on it in the early portion of the (Book on) marriage, a little before the expression of the author (i.e. of Dur-rul-Mukhtar on Tanweer-ul- Absar)” “and it is a condition that two witnesses should be present.” “And it will presently come in the chapter on Iddat, that there is no iddat in a marriage which is batil. And it is stated, in this place, in the Buhr (that is Bahr-ur-Rayeq), on the authority of the Mujtaba, that in every nikah, as regards the validity of which the learned have differed, as for instance, a marriage without witnesses, sexual intercourse, in that marriage, establishes the (obligation of) iddat. But in the case of the 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. And he (the author 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 obser­ vance 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 of 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 man” should be coupled with the condition—“when the husband does not know that she is a moatudda.” “ 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 of such a marriage. But you must consider the reason for (he condition “at once" (in the Mujtaba).' Ami il is dear that the bringing together is in the contract, and not in the owner­ ship or enjoyment, because if (in the case of a marriage with two sisters) one contract follows tlie other contract, then the subsequent contract is absolutely batil.” Rudd-ul-Muhtar Vol. Ill p. 231. Chapter on punishment. “It is held by all authorities that there will be no Hudd in cases of Doubt in the act, and Doubt 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 of the illegality.” Subha-i-akd occurs where there is a contract in semblance but not in reality; because doubt 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 of nikah ( or marriage) or by reason of the ownership of person, and the unlawfulness arises in consequence of something else, then this sexual intercourse does not involve liability to Hudd e.g. in cases where a person has had sexual inter­ course 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 of the farz kind, (4) or who is in herlhram, 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 of the unlawfulness, if he co-habits (1) with his slave girl who is unlawful to him on account of 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-Muhtar 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 unlaw­ fulness of 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 of a marriage with (1) two sisters together, or (2) of a sister during the iddat of another sister, or (3) of a woman who is a moattada (one observ­ ing 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-Muhtar, 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-Muhtar, but drops out the crucial part of Rudd’s sen­ tence, “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 establi­ shed from marriage and that iddat will also be established if he has had intercourse.” Then Rudd-ul-Muhtar, quoting Dur-rul-Mukhtar 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 observ­ ing 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 Kafir and a Muslima, a marriage with a married woman and a marriage with a woman in her iddat. Since the cases of the remaining three classes of women mentioned by Mohit (marrying together two sisters, marrying a fifth wife during the iddat of the fourth and marring 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 Mohit's opinion in respect of 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, of the remaining portion of Mohit’s statement. Tahtavi, apparently, mistook the sentence as expressing Rudd’s own opinion. He has omitted an important portion and has disregarded the long discussion in which Rudd enters immediately after­ wards. Thus the passage he quotes, assumes a wrong meaning. Therefore, this sentence may be taken to express the opinion of Mohit, and possibly, of Tahtavi, but certainly not that of Rudd. Now, the comments of Radd-ul-Muhtar may be summarised as follows ; ( 120 y

“Tt is more proper to drop the word Sahih, as has been done in Bahr and Nahur, because, as Hamawi 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, that 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 of 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 with her sister, (in which case) it would not have been lawful for him to co-habit with his wife, until the iddat of her sister had expired. The first will get her whole dower and the second will get nothing (if there has been no consummation with her) because her Nikah 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) Where 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 consummation); whereas, the marriage of 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 of 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. If there has been intercourse with both, each will become entitled to whichever is the lesser amount—the fixed or the proper dower—and they will have to observe iddat, in the same way as in an invalid or fasid marriage, For authority, he quotes Bahr.” “Bahr also says that Mohit has made it a con­ dition for the marriage of both of them being void, that neither of them should be in the marriage, or iddat, of another man; because, if it is so, then the marriage of the other will be valid, because there will be no joining together of both of them; just as a woman 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 woman cannot be lawful to one of the two men.” In this passage, Rudd-ul-Muhtar is merely dis­ cussing the liability to pay dower; he is not consider­ ing the validity or invalidity of the marriage. Obligation 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 of the relationship. There has been a great deal of confusion in understanding the real nature of Mahar even among the early text writers. Nobody, except one, has given a comprehensive definition of Mahar which will apply to every case. The only definition which brings out the real nature of Mahar is given by Qazi Khan on page 177 of his Fatawa. “As for Mahar, it is a return for (or price of) vagina. As he possesses her vagina, he is required to pay for it.” (See Text 111) Durr-ul-Mukhtar, (see p.380 of Radd-ul-Muhtar.) “Customary dower becomes obligatory in a Nikah-i-fasid by co-habitation (in the vagina) and not without it (e.g. by retirement), on account of the prohibition of a co-habitation with her.” (See Text 112) Now Raddul-Muhtar explains three terms in the above :— “If a man copulates with a woman in her anus i.e. commits the act of sodomy with her, the mahar does not become obligatory upon the man, as the anus is not the place of generation, as is mentioned in Khulasa and Kunniah. Nor will it, all the more, become obli­ gatory by touching or kissing her with desire, as it has been clearly mentioned by theologians. The same is mentioned by Bahr also.” “The commentator wants to explain that the Mahar does not become obligatory on the taking place of the Nikah-i-fasid by itself, {i.e. by a mere retirement, enjoyment or the act of co-habi­ tation, is not proved.) Therefore, such a retire­ ment is not sahih (valid), in the same way as a retirement with a woman who is in her menses. For this reason, this retirement is not equivalent to an actual co-habitation. This is the meaning of the what doctors say—valid retirement in an invalid Nikah is equivalent to an invalid retirement in a valid Nikah.” (8) Ibne Arabi says, on p. 158. “God has prohibited conjunction between two sisters, in the same way, as he has prohibited a marriage with a sister {i.e. with one’s own sister)” (See Text 113) Thus, Ibn Arabi has in a short sentence tersely put the matter 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 Abu Hanifa and, subsequently, he gives his own counter-arguments against his views (Text 64). “Abu Hanifa 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 woman who has been married during the iddat of the fourth wife, are unlawful on account of a gene­ ralisation (of the commands) of the Quran, because, though they are not joined together in marriage, yet they are, all the same, joined together in control, based upon the rules governing the use of vagina. This happens like this. When he marries her (his divorced wife’s) sister, then he keeps his wife (i.e. the sister) under control, on account of the sanction or rules of Nikah which makes her lawful to him and legalises his co-habita­ tion with her; whereas, he keeps her sister under control, on account of the rules of Nikah which are aimed at the purification of her womb, for the sake of the purity of the Nasab. Therefore, these conjunctions have been made unlawful on account of the generalisations of Quran.” “This is one of those greatly controversial points which I have discussed, in detail, at another place. It will suffice to mention here that God has prohibit­ ed a man from joining together two sisters. This, certainly, is not a case of joining together two sisters, because Nikah is the deliberate act of man, whereas, Iddat has been imposed upon the woman (by God). Therefore, the conjunction between these two, if any, is the act of God Almighty. The man (in ques­ tion) 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 God and not the act of the man, there can be no reason for the imposition of any prohibition upon him). Kanz-ud-Daqaiq A.D. 1300. In the case of invalid marriage customary dower becomes obligatory where there has been co-habi­ tation. 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.” “Nikah cannot be effected except by its pillar (Rukn), emanating from Ahal (one who is com­ petent 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 pro­ posal and acceptance. The Ahal (or person com­ petent 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 (Hukm 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) “ Marriage is a contract which creates ownership of enjoyment,” that is, the lawfulness of enjoyment by the man of the woman. Sharhi Viqaya. “In the case of an invalid marriage, nothing (e.g. dower 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 metaphor, 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 of creating ownership in the enjoyment (muriafa) of the private parts of the woman.” “The general condition of marriage is competency (Ahliyat) in matters of sanity and majority, and a mahal or fitting subject, and this mahal is a woman to whose marriage there is no legal bar; and the pillar or Rukn of marriage consists of proposal and acceptance, from whichever side it may emanate. And the effect or Hukm of the marriage is ( 1) the establishment of the lawfulness of the woman, (2) the liability of the man to pay dower, (3) the establishment of the unlawfulness of the Musahi- rat i.e. affinity, and (4) the unlawfulness of joining together two sisters.” Inaya Vol. II p. 10. “The Hedaya is referring to the case of two con­ tracts, because, if he marries them by one contract, the Nikah is batil on account of Juma (or joining) between two sisters, and, therefore, they will not be entitled to any dower. He has confined the case to one where the husband does not know which marriage was contracted first, because, if he knows this, the Nikah of the second is batil.” Inaya Vol. II p. 74. “Fasid marriages are e.g. (1) a marriage without witnesses (2) the marriage of a sister during the iddat of another sister, (3) of a fifth wife during the iddat of the fourth wife etc; and the nasab of the child, in a fasid marriage, is established. The Kazi will separate the husband and wife, in case of a fasid marriage (Hedaya). Aynes (a commentary on Hedaya) Vol. II p. 31. (1446 A.D.) “Because if the man marries them by one contract, the marriage is batil on account of Juma (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 man does not know which is first, because, if he knows this, the marriage of the second is batil.” Fathul-Qadir ( a commentary on Hedaya) pp. 33-34 1456 A.D.). “The expression, “the marriage is batil”, is said by some (to mean) fasid, as mentioned above; and in the case of marriage, there is no difference between them, (i.e. between the terms Balil and Fasid) contrary to (the case of) sale.” “If a man marries two sisters by two contracts, but 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 married by one contract, the marriages of both shall be batil; and he has confined the case to the absence of the knowledge of priority, because, if he knows it, the marriage of the first is Sahih (valid), and that of the second is batil.” Zakhirat-ul-Uqba (also called Chalpi) (a commen­ tary on Sharhi-Viqaya) p. 143 (1496 A.D.). “The expression, “Fasid Marriages,” means marriages such as a marriage without witnesses, a marriage of a sister during the iddat of the other sister who has been irrevocably divorced, of a fifth wife during the iddat of a fourth wife, and marriages similar to these.” Jamai-ur-Rumuz or Kohistani 1534. P. 248. “ Tt is permissible that the unlawfulness be explained by fasid and batil, because there is no difference between batil and fasid, in the matter of marriage.” P. 264. “And in Nikah which is fasid i.e. batil, (e.g. a marriage (1) with a woman prohibited perpe­ tually or temporarily, or (2) with a woman on whose behalf there has been compulsion, or (3) a marriage without witnesses, or (4) a marriage with a slave girl upon a free woman., or (5) a marriage within the period of iddat, or (6) a marriage in other ins­ tances), if there has been no co-habitation (although there was a valid retirement), there is neither dower, nor iddat, nor maintenance. Tf he has had inter­ course with her, (the author has in contemplation the case where the man is not aware of the illegality of 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 Mohammad, (and according to this is the futwa), and from the time of the marriage, according to Abu Hanifa and Abu Yusuf. For this reason, the mashaikhs have differed whether the Firash (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 prohibit­ ed on account of consanguinity.” “They are mothers, daughters, sisters, father’s sisters, mother’s sisters, brother’s daughters and sister’s daughters. Marriage and co-habitation with them are permanently prohibited, it is so laid down in Mohit Sarkhasi.” “Class II. Concerning women who are prohibi­ ted on account of 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 of 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 prohi­ bited on account of fosterage. The rule is that all those relations who are prohibited on the ground of consanguinity or affinity are also prohi­ bited on the ground of fosterage. It is so stated in Mohit.” “Class IV. Concerning women who are prohi­ bited on the ground of unlawful collection. They are of two categories : (A) Unlawful collection of strangers; and (B) Unlawful collection of Zawat 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 is so stated in Mohit. It is lawful for a free man to marry 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 of 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 hus­ band’s daughter; though their marriage could not have been possible in the reverse case (of the dau­ ghter being a male). If the two sisters are married together by one Nikah, a separation must be effected between the man and both the sisters. If the separa­ tion 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. If 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 of 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 separat­ ed 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 stipulat­ ed 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. It 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 co­ habited 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. Mohammad 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 ( batil). 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 Mo’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 Mo’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 connect­ ed with others.” “It is not lawful for a muslim to marry the wife or the mo’attada of another person. It is so stated in Siraj. A mo’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 man 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 man 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. It 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 Mohammad are of the view that one can marry a woman who is preg­ nant from adultery, blit he should not co-habit with her until the delivery of the child. Abu Yusuf is of the opinion that such a marriage will not be Sahih. But the Fatwa is according to the opi­ nion of Abu Hanifa and Mohammad. It is so stated in Mohit. It is stated that the paramour 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 prohi­ bited 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. It is so stated in Siraj-ul-Wahaj. It 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 Murtid (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 Khan.” “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 Khan.” ‘‘Class IX. Concerning women who are prohi­ bited 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. Nor 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 Khan.” (11). Macnaghten. “A man may not marry his mother...... nor is it lawful for a man to be married, at the same time, to any two women who stand in such a degree of 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 dower.” “ Had the two sisters been married by the same man at the same time, or had the priority of 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-Mar 11.” (12) Wilson. “A man is forbidden to have two wives at the same time, so related to each other by consangui­ nity, affinity or fosterage that, if either of 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 unmarried 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-Muhtar 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 Khatoon Vs Karim-un- nisa Khatoon 23C. 130.’ (Note, He has apparently misunderstood Rudd). (15) Saksena p. 219. “The bar of 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 implica­ tions. Later on, he notes the conflict of 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, with­ out 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 subsist­ ing. 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 clearly say that the nikah with both the sisters is batil, but the man can immediately marry either of them, after separation from both, if he had had no sexual intercourse with either of them. If he had such a sexual intercourse with them, he can 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 con­ sensus 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 interven­ tion 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 marri­ ed 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 of Fatawae Alamgiri,. an ^ aving once convinced himself that every marriage which was not prohibited on grounds of 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 autho­ rs e lead one to the following conclusions.

with tw n ^t ^ Uran P*aces the case of a marriage with two sisters on the

- ««* *

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 Prohibitlon’ was void, because'the nr^hv • th® contract time it was entered i„ t0 stm ^ 10/ 1 tf,ubsisted at thS followed by consummation 'th °°ntraCt n’ the legal results of 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 consum­ mated, it is to be treated as absolutely void, with­ out 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 legi­ timacy) 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 for­ bidden 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-Uqba (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 says: 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 of the Secular law has.” In that case, a Hindu married woman adopted Islam, and in the life­ time 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 diffi­ culty confronting every supporter of the view that marriages with all temporarily 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 what that principle is) upon which the sound systematic administration of this part of the Muslim Law in our courts must rest.” (See p. 498). (7) That Beaman, J. took no pains to under­ stand 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 ren­ dered them hopelessly obscure. We need only refer to the treatment 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. Had the text borne the mean­ ing 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 What uncommon meaning has been put upon it by the Calcutta ruling? Then he cites a passage from Qazi Khan (1190 A.D.),and remarks that he certainly holds a marriage

EMBASSY OF PAKISTAN djakarta-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 . °id d iq u i, Dean

of the Faculty of law, University of Dacca, East Pakistan, for the library of your University.

Kindly aclmovjle&pe receipt,

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 hus­ band, 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 num­ ber of original authorities, and came to the conclu­ sion 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 Ash­ worth and Raza, JJ.). In a short judgment, their Lordships observed as follows : “In 23.Cal.130 (Aizun-nisa Khatoon Vs. Karim- un-nisa Khatoon) 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 illegi­ timate and can not inherit. This case was dis­ sented 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 consum­ mated ( 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 argu­ ments 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. Mohammad Din I.L.R. 12. Lahore 52, (Tek Chand and Agha Haidar 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 judgment of 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 marri­ age 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 compre­ hensive 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 judgment on a consideration of the original authorities. He seems to have been over­ impressed by : — (1) The judgment 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 judgments themselves. (2) The opinion of Amir Ali. I have already shown that Amir Ali has committed many errors of a serious nature in his treatment of the subject of Batil and Fasid Marriages. (3) His references to Fatawae Alamgiri shows that he was attaching an undue weight to this compilation, 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 Mohit alone is res­ ponsible for the view that a marriage with two sisters is merely fasid, and not batil. Fatawae Alam- gm expressly incorporates the passage of Mohit. ai lie admittedly bases his opinion on Fatawae t ^ milarly’ M°hit’S °Pini°n ^ quoted in Rud-dul-Muhtar which expressly differs from it in respect of marriages with a Mushrika, a Mo’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 argu­ ments upon one passage found in Alamgiri, I have reproduced, in the Text portion, the original of almost the whole of the chapter dealing with Moharramat 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 that Quran is not quoted even once, nor any work of the Mofasserin. If we read the passages (reproduced in the Text portion) from Imam Razi, Ibn-e-Arabi or Hedaya, we are struck by the fact that for every statement they make, they rely upon some passage of the Holy Quran. This fact clearly brings out the calibre and erudi­ tion of the compilers of the Fatawae Alamgiri. Their vision was limited, and their scholarship seems to be of a stereotyped kind. It was based upon a second-hand knowledge of the subject deriv­ ed from the then recently compiled commentaries. (2) Even as it is, we find that the same word “ Moharramat” is used in Fatawae Alamgiri to denote all the women included in all the 9 classes into which they are divided. The fourth class is that of “Moharramat-Bil-Jama.” It includes two classes of w om en : ( 1) Exceeding the permissible number of four, and, on the authority of Mohit itself, it is stated that it is not lawful for a man to marry more than four free women or slave girls. The word used is ( La Yahillo). In discussing the case of successively marrying five women, it says that the first four marriages will be lawful ( JV ) and the fifth will be unlawful ( j ^ ). Baillie and Amir Ali seem to have over-looked the significance of these words when they were dealing with this case of unlawful conjunction. In describing the case of marriages with two sisters, four sentences are used. In the first, it says (The two sisters should not be collected together in marriage). Then there is an enunciation of the general rule that no two women should be collected together in marriage who are related to each other, in such a way that, if one of them were a male and the other a female, they could not have married each other. Here, the phrase used, is (^ lJ 1 jjf- i V (It is not law­ ful to collect them in marriage). The word is a term of art, and has the meaning of “allowed by Shara. ’ is its ^ or negative. The third and the fourth sentences describe the effect of such a marriage, if it does, in fact, take place. The third one mentions that, if two sisters are simul­ taneously married by one Nikah, the man should be separated from both. It does not use the word fasid or batil in this connection. Lastly, comes the all-important sentence upon which Baillie and Amir Ali have built up their theories. It lays down that if the two sisters are married by two successive contracts of marriage, the second marri­ age will be defective ^ ‘j**- ^ anc* th en proceeds on to say that the woman will get her dower, will have to observe iddat and the issues will be legitimate. Now a careful and comparative study of the sentence will show that, here, Mohit is not using the word fasid as opposed to Batil. It is merely describing that in such a case, only the subsequent marriage will be caught by the unlawfulness, but the first marriage will remain valid. The use of the word fasid seems to have been made in its original 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 Mabsut that “the second marriage is ‘fasid,’ because it results in the collection of two sisters in marriage, and, there­ fore, invalidity (Butlan , the noun of the adjective, 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 Mabsut) and (^e phrase used in Mohit). (b) Fatawae Alamgiri itself cites Qazi Khan 6 times. It also cites Hedaya. In other words, its compilers recognise the authority of those works. Now, Qazi Khan 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 Mohit. This famous book was written by Shams Uddin 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 Khatoon Vs. Karim-un- nisa Khatoon) mentioned that it was not available in India. All that we know about the view express­ ed in this book, on this point, is from the passage which has been incorporated in the Fatawae Alam­ giri. 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 incor­ porating 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 marriage of either sister. This is so, because marriage produces ownership, and ownership can not be acquired over either sister by such a marriage, because the Nikah with neither sister is anterior to that with the other sister, and it is not possible that both the marriages may be valid, because the Quran makes it Haram 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^kJI ). 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, (The 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 of 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 diffe­ rent 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. Unfortu­ nately, 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 Mohit had in view the case of a bona-fide marri­ age, 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 man to pay dower, duty of the woman to observe iddat and legitimacy of the issues of such a marriage. Not 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 con­ tracted 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 Jurisprude­ nce is based. To think otherwise will, in my opi­ nion, be throwing a slur upon a person of the posi­ tion, 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 rele­ vant verse of the Quran, on p. 323, he does not con­ sider, at all, what is the correct meaning and inter­ pretation of the verse, nor does he consider the opinions of Mofassarins regarding this verse. As a judge and a lawyer, he must be knowing that in interpreting an Act, the Act itself is the first thing to be taken into consideration, and the opinions of its commentators can be resorted to, 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 amounting 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 compila­ tions 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 without official imprimateur which this work poss­ esses.” But Fatawae Alamgiri is merely a collec­ tion of the opinions of these very legists and juris­ consults 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 of 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 treatment of the law of marriage, and especially his anxiety to distinguish between permanently and temporarily prohibited marriages is not at par with the rest of his most learned work. In his discussion of batil and fasid marriages, he has made contradictory statements, propounded untenable rules of law and made statements which cannot be supported either by authority or by logic. Since it amounts almost to a sacrilege to say so about a jurist of his towering personality and status, 1 will try to substantiate my assertion by concrete examples : (1) On p. 324, he says “When a valid marriage has been contracted with a woman, her mother and other female ancestors, and her daughter become forbidden to the man, even though, there may not have been consummation.” But this statement is in direct conflict with the Quranic verse 4.4.1. which says :— “Prohibited to you are your wives’ mothers, your step-daughters under your guardianship, born of your wives, to whom ye have gone in (i.e. with whom you have co-habited) No prohibition if you have not gone in (i.e. co-habited).” All Arabic texts are unanimous on this point. This is what Hedayah says (See Text 66) “It is not lawful for a man to marry his wife’s mother whether he may have consummated his marriage with her daughter or not, the Almighty having prohibited such a connection in general terms, without any regard to that circumstance; neither is it lawful for a man to marry the daughter of 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 connec­ tion 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 regard­ ing 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 contracted within 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 treatment of the subject shows that only the marriages contracted with those women who are related to the man 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 separa­ tion 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 important 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 con­ tract 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 contract:— (A) Capacity of Parties is always a fundamental question which goes to the very root of every con­ tract. 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 Rela­ tive 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 master’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 mankuha under the designation of “Prohibitive Incapacity.” The other case which he places under the “Prohi­ bitive 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-Muslim, he says, on p. 400, that according to Mohit and, apparently, Buhr and Tahtavi, such marriages are only invalid ( fasid ), whereas, according to Majma- ul-Fatawa, Dur-rul-Mukhtar and Rudd-ul-Muhtar, they are absolutely nugatory. Then he discusses the two points of view, and clearly indicates his preference for the former view, holding such marri­ ages 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 ownership of the woman by right of Nikah, and it is not possible 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 with a 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 appro­ priate 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 marri­ age 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 celebrat­ ed author of the monumental works like “The Spirit of Islam,” “The History of the Saracens” and “Mohammadan Law” has, at some unguarded 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 uslim s. His untiring efforts to propagate the doctrine of the Wakf-Alal-Aulaud—an important 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 the 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 Marriage 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 Nikah (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 Marriage is of vital importance 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 affi­ nity 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 num­ ber of authorities, side by side, with questions of hudd for zina, dower, iddat, maintennce, and legiti­ macy of the children. Undoubtedly, all these subjects are indissolubly inter-connected, but the funda­ mental 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-Fail or 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 important reason which has been over-looked by all. The Quran, 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) . gut 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, (ol^l fj-*^). 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 him­ self. They can, if they so like, refuse to consider an act as zina, as in cases of J , and unknowingly 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 him­ self, and, specially, if he has laid them down clearly, and in an unambiguous language. Therefore, no action of the jurists in the matter of awarding, or refusing to award, hudd can, in the slightest degree, change the letter or the spirit of any of the injunc­ tions clearly laid down by God in the Quran; 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 diffe­ rence between a batil and a fasid marriage in a matter other than that of iddat (See Rudd-ul- Muhtar 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 dis­ cover 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, her marriage can not be batil. Therefore, he regards the factum of the obliga­ tion 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, if 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, but which are prohibited either on account of some Hadis, like (there is no Nikah without witnesses), or, on general principles which have been deduced by jurists from the Quran. Now, we can sum up the net result of this dis­ cussion. A marriage with two sisters can be con­ tracted, 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 separat­ ed 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 con­ summation, 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 of time, is valid, according to all, except Amir Ali who seems the hold that, in such a case, the marriage 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 co­ habitation 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 marri­ age 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 co­ habitation, 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, how­ ever, the second marriage alone be consummated, 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-Muhtar is it­ self 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 separate contracts, and it is not known which of them was contracted first, the husband is to be asked to explain; if he does so, the priority will be determined according to his explanation; but, if he fails to ex­ plain, 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 marri­ ed 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 marry 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 period of her iddat, marries her sister, such a marriage is considered by the Hanafi school as similar to that with 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 Iman Razi. n Arabi discusses the point from another point of view. An extract from him has also been given earlier.

The arguments of Ibn Arabi can be summarised 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, conse­ quently, 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 con­ junction 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 supple­ mented 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 marri­ ages with Mushrikin.) Even when it prohibited marriages with married women, (-L-JI ^ it did not stop there, but immediately proceeded on to declare Lj ^ I, j List as it proceeded on to qualify the general order of ilP 1 ^ ^ by . Therefore, it may be argued that if 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 concei­ vably 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 amount 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 prohi­ bitions 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 enu­ merated above, all others are lawful to you to marry. One may seek any and every other woman in marri­ age. 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 prohibi­ tion 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 away a right which has been granted by God. The right to marry a woman is a positive right, and one cannot be deprived of a positive right, ’except by the very same authority which grants that positive right. Here this positive right has been granted by 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 cate­ gory of an unlawful conjunction. The law regard­ ing these two classes of women is the same i.e., whatever view a person holds regarding the vali­ dity, 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, wha­ tever 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 ‘and women 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 marries both of them at once ( i.e. by one contract ), their marriages will not be valid” i.e. neither marriage will be valid. “They (i.e. the lawyers) have said that two women who are so related to each other that if one of them were a male, and the other a female, a marriage between them would be unfawful, cannot be validly brought together (in marriage) except in one case, viz, when a man brings together, in marriage, a woman and the daughter of her previous 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 supposing the 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 daugh­ ter, 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 relation­ ship 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 unbeli­ evers, 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 argument 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' if i( h> in fact,

(fosid) * V°'d

use"of TheS ^ ^ ^ ^ • The fied 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 aci of thp T -S ^°r ,'ts validuy. uP°n the fulfilment lawful C° m ltl0n’ Wi" n0t’ in its ,urn’ be valid and bwu ■ ■ r what is the act wwch wi" be conditio" 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 condi­ tion 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 prece­ dent, the fulfilment of this condition precedent, as its very name signifies, must precede the commis­ sion 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 uni­ versally 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 conver­ sion, will not, in its turn, be lawful or valid. To hold the nikah illegal, and yet allow the .conseque­ nces 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-worship­ per) 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 unbeliev­ ing 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 for­ bidden by God. The object of marriage is to legalise co-habitation. Since the very act of co­ habitation 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 en­ titled 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 can­ not 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, (which is 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 prohi­ bited 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 objec­ tion to it may be removed, as already observed, by the change of religion, and the connection is, therefore, not zina. The same reasoning is appli­ cable 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 succes­ sfully 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 dau­ ghter, 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 com­ pletes her iddat, if a married woman is divorced by her husband, can they, in those cases, be desig­ nated 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 exist 27 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 of consanguinity, creates an insuperable bar which it dose not, under any cir­ cumstances, 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 of a woman from one of a mo’attada to that of 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 voli­ tion 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. There­ fore, 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 per­ manent and immutable as the laws of nature) which are contained in the Quran. Now what are those prohibitions? They are :—Do not marry a mush­ rika, 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 mo’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 uncon­ sciously 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 virgi­ nity, 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. Why? 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 incapa­ cities. 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 mush­ rika 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 marry­ ing 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, con­ sequently, 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, con­ sequently, 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 of law or fact. Just as a mistake of fact, and not of law, is excuseable, under S.579. I.P.C, similarly, it should be so, under the Muslim law of marriage also. Mulla On p. 236, Art. 264, he says : “The following marriages are irregular : (d) A marriage prohi­ bited 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 Chris­ tian 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 Chri­ stian 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 marry­ ing 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 inva­ lid, and does not affect the legitimacy of the offspr­ ing, 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 govern­ ing 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 of 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 of the two dowers—stipulated or customary. In the case of a marriage with a mushrika, even this second diffe­ rence will disappear, because mahar is a distinc­ tive 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 that the sti­ pulated 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 sur­ vives him. On page 396, Amir Ali says : “ It is only with regard 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 not. 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 co­ habitation 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 rule from extra-juristic point of view, and says that 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 follow­ ed 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 suffi­ cient 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 conver­ sion 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 con­ version 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 ano­ ther 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, 29 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 con­ siderations, it will stand the test of 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 inten­ tion 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 enjoin­ ed 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 mar­ riages of the first four are valid, and the marriage of the fifth is unlawful; if he marries all the five simul­ taneously, 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 un­ lawful 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 per­ fectly 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 unlaw­ ful, and if he marry five in one contract, the marriage of the whole is vitiated.” These passages occur in Book I Ch. Ill 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 Fata­ wae 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 “Chap­ ter 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 of 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 follow­ ing 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 marri­ age 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 pre­ vious 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 con­ junction, (b) a woman marrying her own slave, (c) a person marrying his slave girl “whilst he has a lawful wife” and (d) marrying a poly­ theist. In all these cases, he treats the marriage, if actually contracted, as merely fasid. ^ He over­ looks that a marriage with one’s own slave is always “null and void.” In (c) above, the limi­ tation “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 accor­ dance with the correct rules of the Muslim Law. The above discussion will show *ha|Lth® of Amir Ali, Mulla, Baillie and Tyebji are different from those of other juris s. ,. have said earlier about their views r marriages 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 be pointed 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, subsequ­ ently, 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 connec­ tion 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 per­ fectly 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 marri­ age is void, and so no difficulty can arise : (2) According to the other view, the fifth marriage is opeiative in a limited manner (as Baillie and Amir Ali say). In that case, h o w w ill 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, what­ soever. 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 dis­ advantage. 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 parti­ cular 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 injus­ tice. 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 first four marriages as valid, and the fifth one as void. Therefore, taking all these factors into con­ sideration, 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). ^ (*£-) (-jU* 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 Qura­ nic 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 tMt 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 Pro­ phet “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 con­ tract 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 the presence 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 her/’ 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 without witnesses.” 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 of witnesses ; which all the learned are agreed is re­ quisite to the legality of the marriage. This con­ dition is peculiar to marriage, which is not contract­ ed 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 other contracts, 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 con­ tract, 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 marri­ age without witnesses,’ but the words ‘an essential condition’ which are found in the English transla­ tion, do not appear in the printed original; and not­ withstanding 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 31 (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 ro 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 “validity” and “constitution” is quite unintelligible. If a marriage is properly constituted, it must be valid. Conversely, if it has no validity, it cannot be said to have been properly constituted. 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 inter­ pretation upon it by saying that, if a marriage is given publicity, it will amount 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, he says :—“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 be present 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 interpreta­ tion 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.” There­ fore, 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 the presence 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 contract­ ing, 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 of vol. 11) as follows : “It is also necessary under the Sunni Law, 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 necessa­ ry 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 con­ tracts 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 conse­ quences of an invalid or fasid marriage. Mulla, as usual, follows Baillie and Amir Ali. He says, on p. 232, (Sec. 254) : “A marriage contracted 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 of witnesses, because one of the essential conditions is want­ ing, 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 of marriage i.e. if a marriage is held in the absence of 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 of 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 indi­ cate 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 accor­ ding 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 govern­ ing 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: *L^e ^ ^ a u th o r itie s can not be said Baillie’SCn*6 t0 V'eW ’ and virtually, L cite ^ " hiS ° Wn ipsi dixit- Amir Ali does reasons ^ m h o rit^ and does any reasons m support of his view that a m'irriaee “ thalBT WUneSSeS " The th lrfL 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 thus explained by Imam Razi in his Tafsir Kabir, on p. 189 of Vol. III. (Text 78). “God has made dependent upon the word ” 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 her; 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 conse­ quences). Rudd-ul-Muhtar ( Vol. II p. 999-1000 ) says : (1) “The expression ‘and the iddat of 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 inter­ course, 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 co­ habits with her), no iddat is incumbent on her, so much so, that her husband can immediately co­ habit with her.” Amir Ali in Vol. II p. 329 says : “A married woman 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 marri­ age of a woman, in the life-time of the first hus­ band 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 hus­ band 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 legiti­ mised 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 wit­ nesses; 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 of their respective marriages, he who was prior in point of 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 of 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 of 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 of 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 deci­ sion is based on the analogy of the Quranic pro­ hibition 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 dissolv­ ed 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 requir­ ing of the other party to embrace the faith is imprac­ ticable, 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 separa­ tion (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 conclu­ sion 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 Kumari/’ 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 marri­ age 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 re­ fuses, 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 pre­ vailing 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 relat­ ing 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 advan­ tage 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 (irrevo­ cably), 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 edaya 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 com­ pletion, 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 man; who, having duly consummated, afterwards divorces her, or dies, and her iddat from him be accom­ plished, 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 inter­ course 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 parties contract 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). 34 “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 law­ ful in Islam) by a consummation with a second hus­ band, 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 show­ ing, 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 expira­ tion, 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 ille­ gal. 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 prono­ uncement, 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 contracted by a man with a woman he has repudiated three times and who has not re-married, or who has re­ married, 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 pronoun­ ces 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 irre­ vocable. This being so, the fact that the parties were reconciled soon after the divorce, and continu­ ed 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 subse­ quently 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 impor­ tant propositions of law :— (1) Words of divorce being clear and addressed to the wife were effective though she was not pre­ sent 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 actu­ ally 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 of 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 that 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 law­ fully 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 impedi­ ment had been removed, and that the defendant had again become lawful to the plaintiff for re­ marriage.” (3) “Suppose it had been proved that the de­ fendant 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 evide­ nce that he had divorced the defendant before her re-marriage? We are of opinion that no presump­ tion 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 pur­ pose 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 defen­ dant ought not, upon such evidence, to be compel­ led 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.” 35 This case lays down several very important prin­ ciples 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 without 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 pro­ positions 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 words point 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 on equitable terms i.e. marry them again on payment of a fresh dower) or i.e. (set them free 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 noticea­ ble. The former concerns c-JjL-k-,. (divorced woman generally) and there is no qualification of the word by some such phrase as (and they complete their iddat). In fact, the phrase Cr^. jri ‘j J (shall wait concerning themselves for three 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 liUli “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 unila­ teral 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 con­ sulted 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 asso­ ciate 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 ver­ se 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 of 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 un­ certain manner. In fact, there is a school of Hanafi lawyers which holds the opinion that talak is permissible only in extreme cases. There­ fore, 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 compila­ tion) 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 con­ sider that in every case where the bar of prohibi­ tion 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 men­ tions 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 marri­ ages with a married woman and a thrice-divorced v ^ . u u , wife will bring into prominent relief the hollow­ ness 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 la w fu lly ’ ^ 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 become conditions : - of the following five (a) Her completing the

lddat on

(c)c Her actiial mr r co-hahits*- a SeCOnd h^ a „ d . husband. n with her second (d) Her getting divorre r band, or the death of the second hus- fe) Her , SeCOnd husband. on getting this d W o ^ fro ”0^ period of iddat or on the death of her second L s b a T d " 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 condi­ tions 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 neces­ sary because, as Hedaya puts it, it is this inter­ course 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 of a married woman, two conditions have to be fulfilled. In the case of a thrice-repudiated wife, these very two con­ ditions 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 of only two condi­ tions 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 con­ ditions 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 mar­ riage will not be batil, as in the first case, but merely irregular or fasid. In other words, the absolute insistence upon the fulfilment of the two conditions 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 ful­ filled 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 prohibi­ tion in her case may be removed by the consum­ mation 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, will Verl r? Step taken t0 brin§ about that result be made6 marriaSe (which was going to be made sahih) dissolve into the thin air. the

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. Nor 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. 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 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 wit­ ness 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 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 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 inter­ course 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 difference 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 (para 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 months 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 obstruc­ tion 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 Pilgrimage, 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 Khan 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 inva­ lidity of the retirement arises on account of some­ thing 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* (Divorce them 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 period 38 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- some th ^ f 6 3lS0 deC'ded 10 that efre«- It is carefully 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 merely r bS, « j rP: r ^

---X r~ er0f~ da; sd applies

is observinghher Siddat^(TeXt 82)' ",f the woman account 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 iddat such obligation arose” * (t preSnant afte1’ Pregnant by zina hr ’■ n she becameS y 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 6 Thn 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 MT between her memt™ i ee clear intervals enstrual periods.” “Tf she have not begun or have ceased mens­ truating, 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 consum­ mation 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 preg­ nant woman continues till her delivery whether it was occasioned by repudiation, death, or relin­ quishment 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 her. until after her delivery. “The illegality of such a marri­ age 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 retire­ ment (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. If the woman is pregnant at the time, the iddat lasts for four months and ten days or until delivery, which­ ever period is longer. It will thus be seen that Mulla, is the only writer who makes this state­ ment 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 important 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 conti­ nuation 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 regard­ ing 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 divor­ ced her or has died. The reason is the word of 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 con­ siders 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 mo’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 mo’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 di­ vorced once or twice. This little point will assume great importance in the course of the discussion. The Quran, it will be noticed, has not, any­ where, 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 iddat obligatory. 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 dictionary; but according to law she will be called “ghair mota­ llaqa, 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 om an, 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 od that if you marry Muslim women and divorce them before you co-habit with them,there will be no iddat for them. If, on the other hand, she is one 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 reckon­ ed 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-preg­ nant, then, either she is subject to menses or not subject to menses. If she is not subject to menses, 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 quali­ fications 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 comprehen­ sive 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 sentence is descriptive, while imperative mood is meant, the question arises : How can an imperative sense be deduced from a descriptive sentence.” He himself answers the question and says that it can be so deduced for two reasons. Then he dis­ cusses 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 state­ ment (Text 35). 39 Divorced woman

i

Married woman Stranger (N o iddat)

I

One with whom Sextual "jj ^ One with whom no " jJ ^ intercourse has taken sextual intercourse " place. has taken place. (No iddat)

Non-Prcgnant woman "

(Iddat lasts till the dc’iv^ of child. It is not c

Subjcct to ' • -i N»t subject ot J •i menses to menses ••

iddat is counted by months not by menses. It is three lunar months exactly.

Free woman Bonds woman "A-iJ’j The period of iddat is three The period of iddat is monthly courses. two monthly courses. "It is not lawful to marry the mankuha or mo’attada of another. On this there is a consensus of opinion." 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 of the child, if any, in the womb of the mother.” 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 esta­ blished, if the husband is aware of the unlawful­ ness, 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 mo’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-Mukhtar has taken this passage from Mohit, through Radd-ul- Muhtar.

Ibn Abu Zaid opens a new heading of “ Illegal Marriages” ('^Ul Under this heading he writes as follows : The law forbids : (4) a marriage during the woman’s retreat. (See Text 107). " Rusself and Suhrwardy, p. 9.

Later on, Ibn Abu Zaid starts another heading of ‘’Perpetual Impediments” /.^.causes which will create a perpetual bar to the marriage. He says : “A perpetual prohibition against marriage 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 co­ habits 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 con­ tracting 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 para­ phrased, 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 consumma­ tion of an invalid or a semblable marriage ...... It is lawful for the master of the iddat, that is, the person by connection with whom it is induced, to marry the mo’attudda when there is no other impedi­ ment besides the iddat." Here, in this passage mo’attada and mankuha are put together absolutely on the same level. Amir Ali. Vol. II Page 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 valid con­ tract 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 prohi­ bited 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 reconcil­ ed 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 con­ tract 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 ampli­ fies his statement by saying that the parties shouid not be within the prohibited degrees of relationship 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 ron 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) This bar 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 essen 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 mo’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 doubt­ ful 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 which have 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 un­ lawfulness 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 ques­ tion 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 legi­ timate. In fact, there is no difference of opinion, at all, on this point. The controversy relates solely to a marriage with a mo’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 ‘"Marri­ age 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 of 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 con­ sequence 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 ren­ ders 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 con­ jugal rights. The marriage had been contracted 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 concern­ ed. 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 192 It 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. ill. 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 of 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 of 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 marri­ age 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 Quran 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-Muhtar in his commentary only to be refuted by him. Tahtawi (in 1839) has copied the passage either from Mohit itself, or, apparently, from Rudd-ul-Muhtar. Again, Fawawac Alam­ giri 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 of prohibition can be removed in certain eventualities; and since they can be so removed, such prohibitions are not per­ manent; and if they are not “permanent, the marri­ age 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 of pro­ hibition permanently prohibits a union with the woman so prohibited. If 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 of law, with whom the marriage was previously prohibited. He has sacrificed authority, logic and even morality at the alter of consistency, by holding such marriages as merely fasid. Wilson and Mulla say the same thing on the authority of Baillie. Similarly, Amir Ali holds a strong opinion on this subject. But Amir 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 sugges­ tions 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 mo’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 main­ tain 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 are lo 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 specifi­ cally lay down the necessity for the presence of two persons as witnesses of the marriage, yet it pres­ cribes, in clearest terms, the necessity of the pre­ sence 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 star­ ting 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 oil 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 prohibi­ tion 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 tio n ­ ed either in Quran or in any Hadis. They w ere introduced by fo llo w ers 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 afei does not agree with their views. Hedaya describes this conflict of view in connec­ tion 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). "If a man repudiate his wife, either by a com­ plete 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 re­ pudiated wife during her Edit, knowing the illega­ lity of the same, he would be liable to the punish­ ment 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 transla­ tion of one phrase which means “and the effect of the '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 does it appear, in the book of divorce, that any punishment for whoredom is specified in the case of the husband having carnal connection with his repudiated w'ife within the term of her Edit; although, according to the B ook o f Punish­ ments, he wouUi incur it, because, by the act ol d ivorce, the husband’s right of co-habitation is dissolved and, consequently, any subsequent cohabitation with her would bear the construction of whoredom; but yet his other rights are not dissolv­ ed (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 con­ trary 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 imper­ tinence 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 argu­ ments. 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 conse­ quence of that event) is not on account of the right of her husband, but of the Law—the Edit of widow­ hood 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 mo’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 widowhood 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 cf 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 woman 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 account of anything which can be * j \ u J . ue imputed to her as a fault or as a crime, e .g her ■ , , uer becoming an apostate, or her having sexual interm..- j u u ■ 1Course or dalliance with H Which ««« her marriage W her husband ls' >Pso facto, dissolved. (2) Co-habitation with > -c j a shubh. Here, the worn S " 6 Under iddat if the act was not H ?" haVe °bSerVe knowledge of her beine th -r* the ma" with the ™ t , 8 he Wlfe another. (3) fhe same rule another’s mo’attadah unrl°'le c°-habits with ld \ n • er a mistake of fact. (4) No maintenance ic who has been married K payable to a woman ( \ ,A . A y an invalid marriage, v ) (Amir Ali Vol tt rity of Rudd-ul-Muhtar Vo i n ' °" “ “ it be payable to her (after L P' '°65)’. n°r W'" her husband, either vai., + ^ separatlon from during the period of her iddaTcwhTchtTbe

Therefore, it will be seen that there is no such necessary inter-relation between a right of main­ tenance and marriage that the presence or a b s e n c e of the one may be cited as an argument for the existence or non-existence of the other. There­ fore, the fact that the man has to pay main­ tenance 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 diffi­ culty. 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 connec­ tion, 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 hus­ band 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°ns, it is humbly suggested that e la ei view seems to be more in consonance with reason. , discussed the arguments advanced by the Hanafi Schooluuui, i I mnvmay urge one more point against 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, (includ­ ing 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 under­ standable. 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 (2.28.1.). Since Quran does not p r o h ib it 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 of 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 men­ tioned in 2.28.1. The maxim of law In c lu siv 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. What will be the status of 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 of law by penalising those who violate its provisions. Courts can do so only on the basis of the evidence on the record. How can this evidence be pro­ duced? 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 separa­ tion 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 prohibi­ tion 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 parti­ culars ; 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 doc­ trines 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 per­ missible 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 of 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 deter­ mined on grounds of public policy and that demands their discouragement.

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>^>=“ J j»----- 7 * La* *)Vi JV-----.5 l_jj_J^-> jfr—I (1) 1? Acknowlegment of paternity of illigetimate children p. 257. Animus delicti p. 52. Aurangzeb, Emperor pp. 34, 172. Biological and legal paternity, distinction between pp. 180-82. First may exist without the second, illustration p. 181. Second may exist without the first, illustrations p. 181-82. Commentaries in Muslim Law. Character of p. 70-1. Conversion to Islam : (a) of a man who had two sister in marriage pp. 93-4 (b) of a married woman, its effect on her marriage p. 223-4, 257-61. Corpus Juris Civilis p. 153. Divorce : Number of p. 8. First and second divorces, Quran pp. 8, 263. Consequences of—first and second divorces, Hedaya 264, 301 Abdul Rahman 301, Quran 275-6,—third divorce, Quran pp. 8, 263, Abdul Rahman 268, Abu Zaid 265, Alamgiri 265, Amir Ali 267, Baillie 266, Hedaya 264, 301-2, Mulla 267, Wilson 268-9. Prescribed time, should be given at p. 291. Quranic rule, is it injust to women p. 276. Marriage with Mohullil, criticism of Wilson 277-8; Answer to it pp. 278-9. D ow er : Definition and nature of, Durr p. 122, Rudd p. 122-3, Qazi Khan p. 122. Customary, when due, pp. 112, 122, 125, 126. When no dower payable :

(1) Sodomy with or kissing a woman or touching her with desire p. 122

(2) Nikah-e-fasid, if no actual co-habitation pp. 112, 123

(3) Retirement with a woman in her menses p. 123.

(4) Marriage with two sisters by one Aqd, Aynee p. 127 Inaya p .127. Factum Valet, doctrine of pp, 81, 155 Whether applicable to Muslim marriages p. 258. Group marriages p. 2, 3. Hindu Law of Marriage p. 333. Hindu Maths p. 3.

Hudd :

Animus delicti, necessary for p. 52. liability to, and legality of marriage, not inter-dependent pp. 184-6. Marriage with mankuha and mo’attada, when hudd to be imposed p. 118. Marriage with a prohibited woman, when no hudd accor­ ding to Hanifa and his disciples p. 117. No hudd in cases of doubt p. 29.

No hudd though act is zina pp. 28, 29-30, 47-8, 116-17, 184. No hudd in Shubh-fil-fail and Shubh-fil mahal, when, 116, 184. No hudd in Shubh-fil-Aqd, Hanifa and Shafei, conflict of views p. 60-65 criticism of Hanifa’s view p. 65-7. No hudd if co-habitation under sanction of (a) Marriage (b) ownership (c) Shubh. p. 50. Not dropped if adulterer subsequently marries or purchases the adultress pp. 87-8.

Prescribed by Quran (flogging) p. 48, Hadis (Rajm) p. 49. When inflicted on one party only p. 31. Iddat. Definition of—Durr p. 109. Final departure of mo’attada from husband’s house, must be in presence of two just witnesses p. 322. Husband can take her back during iddat in revocable divorce pp. 300-1. No personal decoration during iddat pp. 321-2. No proposal of marriage during iddat pp. 8, 321 Not obligatary : In marriage which is batil p. 114, with Kafir p. 118, with mankuha or mo’attada pp. 115, 118. When Muslima marries and co-habits with Kafir p. 113. Obligation to observe iddat and legality of marriage, not inter­ dependent. pp. 186-7. Of a widow, no maintenance payable pp. 328-9. Period of, to be counted accurately pp. 291,322 Periods of : (a) of a divorcee, Quran pp. 7, 263, 289, Qazi Khan p. 294, Abu Zaid pp. 7, 298, Amir Ali 294. (His view inaccurate p. 294-5) if divorced before intercourse pp. 290, 299. if pregnant, pp. 290, 297, 299 • (b) of a widow, Quran p. 8, 290, Abu Zaid p: 299, general p. 295; if pregnant, pp..297-8-, Quran p. 290, Abu Zaid p. 299, Hedaya pp. 294-5, Qazi Khan pp. 295, 298, Amir Ali pp. 294, 298, 299, Baillie p. ’299, Mulla p. 300, -Rahman p .-300, Wilson-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, 12,91,96, 173,251

4.4.2 PP. 7, 9, 11,96, 1 9 5 ,2 5 1 ,3 3 5 4.7.1 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. 291,322

65.1.7 pp. 291,322

Quranic verse can be repealed only by another Quranic verse pp. 323-4.

Quran’s interpretation by commentators, must it be followed by courts pp. 152, Khilwat-e-Sahiha : Definition, Hedaya p. 296, Qazi Khan p. 297. Makes iddat obligatory in sahih marriage p. 297, but not in fasid marriage p. 123 Maintenance : Of divorced women, 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 of marriage pp. 326-31. Payable to other relations besides wife p. 327. Payable to divorced wife sometime even after expiry of iddat p. 328. Not payable : in some cases of co-habitation though woman has to observe iddat p. 330. to widow during iddat p. 328. Hedaya’s reason for this rule p. 328. real reason for it pp. 328-9. of mo’attadah by her ex-husband, p. 331. Marriage : Apostacy, effect on, Abu Zaid p. 206. Batil and fasid marriage no distinction among early jurists, Fath p. 127-8, Jamai-ur-Rumuz p. 128, Lubab p. 69 Mabsut p. 168, Majma-ul-Anhar p. 68, Qazi Khan p. 68, Rudd pp. 69, 115, 245, 308.

Later jurists draw a distinction pp. 72. Rudd makes distinction between them in matter of iddat only pp. 69, 115, 245, 308.

Batil, Definition p. 69.

Batil, no iddat in p. 114. Batil, no consequences unless consummated Rudd p. 114, Sharhe Viqaya p. 126.

Co-habitation with wife, always permitted by Quran, pp. 292. 334-5 except during menses, pp. 292, 334.

Custody of mo’attadah, no argument for continuity of marriage p. 331.

Divisions of

(a) Sunni Law, Sahih, Fasid. Batil p. 151, 186.

(b) Shia Law, Sahih, Batil.p. 51.

Fasid Marriage : Definition p. 69. Instances of, Inaya p. 127, Zakhira p. 128, Jamai-ur- Rum uz p. 128. Legal incidents of, p. 83. Origin of the term pp. 82-3. Theory regarding origin of, pp. 82-3. When no legal consequences flow from it p. 126. Fatawae Alamgiri, does it reject the notion of batil marriages pp. 33-4.

Hadis imposes the duty to marry pp. 5-6. Ignorance of law, effect on marriage p. 51.

Law of Muslim marriage complicated by :

(a) doctrine of Shubh. p. 67.

(b) character of Muslim jurists pp. 69-70,

(c) practice of writing commentaries pp. 70-1.

(d) questions of hudd, dower, iddat, maintenance and legitimacy of children p. 183. Legality of marriage and liability to hudd, no” necessary inter-connection pp. 184-6. Marriage during Iliram p. 38. Marriage of an apostate p. 332 Marriage of an idolatress p. 332. Marriage of a Muslima with a Kafir p. 214-15. Marriage of a zani or a zania pp. 41-2. Marriage proposal not to be made to (a) a mo’attada, Quran p. 321, Hamilton p. 321, Abu Zaid p. 321. (b) a pregnant woman p. 286. (c) a married woman p. 257. Marriage with a mankuha and a mutallaqa, comparision pp. 279-84. Marriage with a mohullil, valid pp. 264-5, Its criticism by Wilson pp. 277-8. Answer to this criticism pp. 278-9. Marriage with a slave girl upon a free woman p. 41. Marriage with one’s own slave p. 41. How it can be effected pp. 77-8. Marriage with temporarily prohibited women, how it came to be called fasid pp. 81-2. Mulla’s view on void and irregular marriages pp. 19-20.

Nature of, in Muslim Law :

(a) an Ibadat, p. 5.

(b) a meritorious act, Hadis p. 5-6.

Not directly enjoined by Quran p. 6.

Period of waiting if husband untraceable, Jami-ur-Rumuz pp. 338-9; Abu Zaid p. 339. Prohibition regarding marriage, can they be divided into Permanent and Temporary pp. 83-9, 208-13

Quran imposes no positive duty to marry p.5. Re-marriage with woman divorced by la’an Amir Ali p. 38. Restraint on marriage of mo’attada, does it mean continuity of her previous marriage p. 332. Sunnat Muvakkada p. 6. Uncertainty of legality of marriage, unlawfulness to prevail Ibne Arabi p. 83. Validity of marriage, whether .depends upon co-habitation amounting to Zina p. 14.

Marriage with Hamila (pregnant woman).

Arises in three ways p. 285.

Invalid if pregnancy lawful, Amir Ali, pp. 287, 288; Baillie p. 286-7; Hedaya p. 286.

Unlawfulness arising from pregnancy pp. 285-8.

Valid if pregnancy due to Zina, Amir Ali p. 987, Baillie, p. 286, Hedaya p. 286; Qazi Khan pp. 285-6.

Abu Yusuf differs from Hanifa and Mohammad; Amir Ali P- 87-8; Bailie p. 286, Hedaya p. 286 Qazi Khan pp 285-6; Rudd pp 287-8.

Fatwa according to Hanifa and Mohammad; Amir Ah p. 287.

Husband should no, co-habi, until! delivery aillie p. 286; Hedaya p. 286; Qazi Khan p. 285. unless the husband himself is the father of the child Am ir A li p. 288.

Marriage with Mankuha (married woman).

C ase Law p. 255-61.

Comparison with a marriage with a mutallaqa pp. 279-84.

How this bar can be removed p. 76.

Kafira adopts Islam, how her previous marriage with kafir dissolved Hedaya p. 258, Case-law p. 258-60. Prohibition on marriage with— analytical discussion pp. 208-13, Amir Ali p. 253, Baillie p. 254, Fatawae Alamgiri pp. 135-6; 253; Macnaghten pp. 255, 256; Mulla pp. 254-5. Qazi Khan pp. 251-2; Quran p. 251; Rahman p. 254, Razi p. 251, Rudd. pp. 115, 118, 252-3. Wilson p. 254. If marriage with second husband only consummated, will it be validated on ground of public policy, Amir Ali pp. 253-4.

Marriage with mo’attada : Bar of marriage, how can it be removed p. 75. Case-law pp. 316-19.

Custody of mo’attada, no argument for continuity of her marriage p. 331. Custody of mo’attada, by her ex-husband only for purpose of maintenance p. 331. Legality of, Abu Zaid p. 308-9, Alamgiri p. 135, 253, Amir Ali p. 310-11, criticism of Amir Ali pp. 311-15; Baillie pp. 309-10, Hedaya pp. 301-2, 307, Mulla p. 316, Qazi Khan pp. 251, 306-7; Quran pp. 289-94, 303-4, Rahman p. 302; 315; Razi pp. 304-5, 306; Rudd pp. 115, 118, 307-8, Tahtavi p. 117-8, Wilson p.309 General discussion on its legality pp. 319-24.

Marriage proposal to a mo’attada, not permitted p. 290,Abu Zaid p. 321, Hamilton p. 321.

Marriage with a mo’attada or mankuha, on the same level, Alamgiri pp. 298, 309, Qazi Khan p. 307; Rudd p. 307. Marriage with a mo’attada, Rudd pp. 115, 118. Analysis of Rudd’s views pp. 118-19. Mo’attada not to decorate herself during iddat pp. 321-2 M o’attada perpetually prohibited if married and enjoyed during iddat. Abu Zaid p. 308, Restraint on re-marriage, does original marriage continue p. 332. Various periods of iddat pp. 294-300.

Marriage with Mushrika : Bar of prohibition, how removed p. 77. Bar of prohibition and change of status and personality, pp- 209-13.

Bar of prohibition must be removed before marriage with wife’s sister. Durr p. 229. Case-law pp. 222-225.

Co-habitation with a mushrika forbidden, Abu Zaid pp. 205-6; Baillie p. 208. Conversion to Islam, should it precede nikah pp. 200-4 . Marriage with Mushrika. Alamgiri pp. 136-7, 205, Amir Ali pp. 216-17, 219, 220-1, 221, critical analysis of his view pp. 217-22, Baillie p. 207, critical analysis of Bailhe’s views pp. 207-8, criticism of Baillie pp. 208- 13; Hedaya p. 205; Ibn Abu Zaid pp. 205-6. Majma- ul-Falawa, p. 220; Mulla p. 216, Qazi Khan p. 205, Quran pp. 7, 200, Quranic phraseology, examination of, pp. 201-5, Quran not discussed by Amir Ali p. p. 222, Rahman p. 207; Razi, p. 200; Rudd pp. 113, 118, 219, 220, Tahtavi p. 117 , Wilson pp. 206-7: Yusuf p. 214.

Marriage of a muslima with a kafir, both unaware of prohibi­ tion pp. 214-5.

Whether prohibition political in nature pp. 225-6, Amir Ali p. 225, Quran p. 226,

Marriage with two sisters : (1) Authorities—Alamgiri pp. 132-5, Amir Ali pp. 140-2, Aynee p. 127, Durr p. 108, 229; Fath, p. 127, Hadis p. 91, Hedaya pp. 100-104; Tbne Arabi, p. 123; Inaya p. 127, Kifaya pp. 100-104, Mac, p. 138 j Qazi Khan pp. 104, 105, Quran pp. 91, Rahim p. 139 Rahman, pp. 138-9, Razi pp. 91-99, Rudd pp. Ill, 120. 121, Saksena, p. 139, Tahtavi pp. 117-18. (2) Co-habitation :

(a) with wife’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. Ill, 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. Ill, 120, 121. Even if the husband co-habits with the second only, Qazi Khan p. 105, Rahman pp. 138-9. (b) Priority unknown, both invalid Mac 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. 12 1. If one sister M o’attada, marriage with the other valid, Rahman pp. 138-9. Marriage with two sisters, how the husband can later marry either, Qazi Khan, p. 105. Marriage with the sister of an enjoyed slave-girl, consequen­ ces, Hedaya pp. 99—101. Marriage of a kafir with two sisters, effect of his conversion upon his marriages pp. 93-4. Hanifa differs from Shafei and Razi pp. 93-4. Summary of Razi’s views pp. 96-9. Summary of Hedaya and Kifaya pp. 100-4. Summary of authorities pp. 187-196.

Marriage with Mutallaqa (262-284) : Case Law pp. 269-74. Consequences of a third talak, Abu Zaid p. 265. Amir Ali p. 267; Baillie p. 266-7; Fatawae Alamgiri p. 137, 265, Hedaya p. 264, Mulla p. 267, Quran p. 263; Rahman pp. 268-9; Wilson p. 267-8. Definition of Mutallaqa p. 262. Comparision of conditions legalising marriages with a man­ kuha and a mutallaqa pp. 279-83. Marriage with a mutallaqa, batil or fasid p. 279. Criticism of Baillie’s views pp. 283-4. Marriage with a Mohullil. valid p. 265. Wilson’s criticism pp. 277-8.

Answer to Wilson’s criticism pp. 278-9. Mohullil and Mohlil-la-hoo, prophet’s curse upon Hedaya p. 278.

Quranic injunctions regarding talak pp. 262-4 Summary of Quranic verses, pp. 275-9

Marriage with a woman during her iddat (289-324) Cognate to

( 1) marriage with a fifth wife during iddat of the fourth wife. (2) marriage with a fourth wife when one, having three wives, co-habits with a fourth under a shubh or mkah-e-fasid, and such woman is in iddat p. 324. None mentioned in Quran or Hadis p. 324. Conflict of view between Hanifa and Shafei : (a) described by Hedaya pp. 324-6. (b) described by Ibne Arabi pp. 123-5 ; 192-3 (c) described by Razi pp. 94-6. Arguments in favour of Shafei view pp. 193-6. Critical examination of Hanafi view pp. 326-39. Marriage 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. Whether such marriages are batil or fasid pp. 233-6, Alamgiri pp. 131, 229, Amir 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, Wilson, p. 230.

Marriage without witnesses pp. 237-50

Essential condition of validity of 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. Not 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 of witnesses pp. 238-9. Quranic injunctions pp. 237, 239, 240. Rule based upon Quranic verse 2.39.1, pp. 239-40. Whether Malik considers the Hadis unauthentic pp. 412-3. Ibn Abu Zaic p. 243. Who should act as witnesses p. 239. Marriage with Zawat-uI-Arham (Unlawful Conjunction) pp. 196-9. Bar on marriage, how it can be removed pp. 76-7. Co-habitation with two slave-girls who are Zawat-ul Arham Durr p. 108. Conjunction prohibited in valid marriage and in iddat Durr p. 108. Marriages with them unlawful Alamgiri pp. 132-5, Hedaya p. 199, and Macnaghten p. 138, Qazi Khan pp. 19 - - Wilson p. 138.

Saksena calls it irregular not void p. 139.

Zawat-ul-Araham, Definition, p. 197, Qazi Khan 198, Hedaya p. 199.

Matriarchal system pp. 2, 3.

Muslim Jurisprudence, age of consolidation of, p. 44.

Muslim jurists and Roman juris consults, comparision pp. 69-7.

Muslim Law not territorial p. 35.

Napolean, Emperor, p. 172.

Nikah :

Definition Amir Ali p. 4, Baillie p. 4, Hedaya p. 4, Inaya p. 126, Kifaya. p. 125, Macnaghten p. 4; Viqaya p. 125, W ilson p. 4.

Essentials of Nikah, Inaya p. 126, Kifaya p. 125, Viqaya p. 125.

Its nature according to Muslim Law (a) more than a civil contract p. 5 (b) partakes of the nature of Ibadat p. 5. Nikah-e-fasid—

Definition, Durr, p. 112.

Dower customary, payable „„ co-habitation Kanz p. 125, Sharhe-Viqaya p. 126

Instances of, Inaya p. |27, Zakhira p

Not positively enjoined by Quran p. 5.

Polyandry pp. 2, 3,203. Prophet’s saying PP. 5, 6.

Prohibited with 19 classes of women by Quran p. 9. Prohibition on marriage. Classification of

(a) Prohibited women, Amir 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, Wilson 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 of Nasab, Riza and M usahart, Qazi Khan p. 78. On ground of affinity, when it springs up, pp. 130-1. produces no legal consequences p. 74. Temporarily prohibited women, (a) How marriage with them came to be called fasid pp. 81-2. (b) How the prohibition can be removed; mo’attada p. 75 mankuha p. 76, fifth wife p. 76, unlawful con­ junction 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, Rukoo 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 , 12,91,96, 173,251

4.4.2 PP. 7, 9, 11,96, 1 9 5 ,2 5 1 ,3 3 5 4.7.1 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. 291,322

65.1.7 pp. 291,322

Quranic verse can be repealed only by another Quranic verse pp. 323-4.

Quran’s interpretation by commentators, must it be followed by courts pp. 152, Res ipsa loquiter p. 59. Roman Jurisconsults pp. 44, 69. Shubli :

Classification of

(I) Shubhat-ul-Fail or Shubhat-ul-Ishtibah pp. 52-5, Rudd p. 116. Can be pleaded only in 8 cases p. 53. Consequences of, p. 28,53-4. Consequences of co-habitation under pp. 53-4. When no hudd inflicted p. 116.

(2) Shubha-fil-Mahal or Shubha Hukmia pp. 55-8 Rudd p. 116. Cases in which it can be pleaded pp. 55-6. Consequences of 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, Yusuf and Mohammad disagree with Hanifa pp. 60-5. Arguments of Hanifa pp. 60-1. Arguments of Shafei pp. 61-2. Analysis of the two views p. 62-65. Criticism of Hanifa’s views p. 65-7. Fatwa according to Shafei view p. 64. Doctrine of, complicated Muslim Law of Marriage p. 67. Evolution of the doctrine of, its causes p. 49. Marriage of Muslima and a Kafir and doctrine of Shubh p. 214-5. Whether the doctrine is unintellegible verbiage p. 157.

Syed Sultan Ahmad, Sir, pp. 19, 255. Texts-Arabic : (1) Abu Leeth Marriage with a prohibited woman, supports Yusuf and Mohammad p. 31. (2) Anqarvi Punishment for adultery not dropped by marrying or purchasing woman subsequently p. 87. (3) Asbeejani, Marriage with prohibited woman p. 31. (4) Ashah, Definition of marriage p. 4. (5) Auzai, husband untraceable, wife to wait or 4 years p. 339. (6) A ynee

Marriage with wife’s sister with knowledge, batil p. 127,158 Marriage with two sisters by one aqd, both batil, do dower p. 127.

(7) Buhr-ur-Raiq

Shubh-fil-Aqd, fatwa is according to the view of Yusuf p. 64.

Shub-fil-fail, consequences of co-habitation p. 54. Marriage with two sisters, if one in marriage or iddat of another, the marriage with other valid P- 121.

Marriage of a woman with two men, one has four wives, her marriage with other valid p. 1 2 1 . (8) Durr-ul-Mukhtar. Customary dower, when due p. 122 . Fasid marriage, what is .p. 122.

Grouping of prohibited women p. 16. Iddat, meaning of, p. 109. Marriage, a form of Ibadat p. 5 (a) with two sisters pp. 107-8 (b) with more than four women pp. 228-9 (c) without witnesses p. 239 Nikah, nature of, p.5.

(9) Fatawae Alamgiri Batil marriage, does it reject the notion of pp. 31-2, 33-4. Criticism of pp. 163-6. Grouping of prohibited women pp. 17-18, 79-80, 129-37. Hudd, liability to, for adultery with woman one subsequently marries or purchases pp. 87-8. Iddat of a pregnant woman, period of p. 298. Is it to Muslim Law what Justinian’s Institute is to Roman Law p. 153. Its authoritativeness in India pp. 34-5, 151-2 M arriage (a) with hamila( pregnant woman), p. 136 (b) with mankuha (married woman) p. 135, 253. (c) with mo’attada (woman in iddat) p. 135 (d) with more than four women p. 131. (e) with mutallaqa (thrice-divorced wife), p. 137,265 (f) with polytheist pp. 136-7, 205 (g) with two sisters pp. 132-5 (h) without witnesses pp. 240-1 Plan of the book pp. 163-4 Prohibited women, classification and enumeration of of pp. 129-37.

(10) Fatawae Qazi Khan

Adultery, where act amounts to, but no hud (a) for both p. 30 (b) for man only p. 47. Definition of (a) Zina p. 46, (b) Mahar p. 122 Division of prohibition into permanent and non­ permanent p. 78. Grouping of prohibited women p. 15. Hudd, where obligatory according to Hanifa p. 5 9 ... Tddat. (a) of Aysa (woman who gets no menses) p. 295

(b) of pregnant woman p. 298 (c) various periods of p. 294.

M arriage

(1) of an apostate p. 332 (2) with hamila pp. 285-6 (3) with mankuha PP. 251-2, 307. (4) with mo’attada p. 307 (5) with more than four women p. 228 (6) with mushrika p. 205 (7) with two sisters pp. 104-6, 158 Where these marriages successive p. 189 (8) with Zawat-ul-Arham pp. 197-8 (9) without witnesses pp. 238-9

Shubh-fil-Aqd

(1) Instances of p. 60

(2) Conflict of opinion between Hanifa and Shafei p p .60-62

(11) Fath-ul-Qadir

Batil and Fasid, no difference in marriage pp. 127-8.

Marriage with two 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 Marriage, a meritorious act pp. 5-6 Marriage without witnesses p. 236, 237, 238, 240, 241 Mohullil and Mohlil-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 God p. 278.

(13) Hedaya Conflict of opinion between Hanifa and Shafei, on marriage with (a) fifth wife during the iddat of the fourth p. 326. (b) prohibited woman pp. 42-3 (c) wife’s sister during wife’s iddat pp. 324-5 Criticism of Hedaya’s view pp. 328-9 Definitions (a) o f Nikah p. 4. (b) of Zina pp. 29, 46-7. God’s curse on Mohullil and Mohlil-la-hoo p. 278 Hudd, none for (a) adultery in Dar-ul-Harb p. 48 (b) sodomy with a woman p. 47

(c) Unnatural act with a beast p. 48

Husband’s rights over divorced wife pp. 301-2

Iddat of Aysa, period of pp. 294-5

Maintenance of a widow during her iddat p. 328

M arriage ( 1) with fifth wife during the iddat of the fourth p. 326

(2) with hamila p.286

(3) with mo’attada p. 307 (4) with more than four women pp. 227-8 (5) with mushrika p. 205 (6) with mutallaqa pp. 264-5 (7) with sister of wife or of a bondswoman pp. 99-100 158 (8) with wife’s sister during wife’s iddat p. 324-6 (9) with Zawat-ul-Arham p. 199 (10) without witnesses pp. 238 Mo’attada not to decorate herself pp. 321-2 Mo’attada, proposal of marriage to p. 321 Shubh, Doctrine of p. 52-53; 55-6 Valid retirement and iddat p. 297

Valid retirement what amounts to p. 296-7 (14) Ibne Abbas

Division of prohibited women pp. 14,79 (15) lbne Abu Zaid

Apostacy, effect on marriage p. 206

Conversion to Islam, effect on marriage p. 206

Divorce before co-habitation, no iddat p. 299. Husband untraceable, wife to wait for four years p. 339 Iddat, period of, (a) of Aysa p. 299 (b) of divorced woman p. 298 (c) of pregnant woman p. 299 (d) of widow p. 299

Marriage, necessity of witnesses p. 243 Marriage with Mushrika p. 205

Marriage, what will create a perpetual bar to, pp. 308-9

Moattada, no proposal of marriage to p. 321. (16) Ibne Arabi

Conflict of opinion between Arabi and Hanifa pp. 123-25 Division of prohibited women pp. 14, 79

(1) Marriage with wife’s sister like one with own sister p. 123.

(2) Marriage with wifes’ sister during wife’s iddat pp. 123-25

(3) Marriage with fifth wife during iddat of fourth wife p. 123-5. Nikah-e-fasid, invalid p. 83.

(17) Inaya. Fasid marriage, nasab eslablished p. 127. Instances of fasid marriages (a) without witnesses (b) with wife’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 con­ tracted with khowledge p. 127. Marriage, presence of witnesses necessary pp. 240-1; 244. Nikah, definition and essentials of p. 126.

(18) Jamai Qazi Khan Hudd not dropped by subsequently marrying or purchasing woman p, 87

(19) Jamai-ur-Rumuz (Kohistani)

Batil and Fasid marriages, no difference between them pp. 128, 158.

Nikah which is fasid i.e. batil,p. 128 (a) Instances of p. 128-9 ( 1 ) marriage with a woman prohibited per­ petually or temporarily (2) marriage with a woman on whose behalf there has been compulsion. (3) marriage without witnesses (4)' marriage with a slave girl upon a tree wom an (5) marriage within the period of iddat (6) marriage in other instances (b) Effect of such a marriage pp. 128-9. Fatwa on the opinion of Malik permissible p. 339. Husband untraceable, wife may marry after 4 yers pp. 339.

Kanz

Definition of marriage p. 4 Invalid marriage, customary dower payable p. 125

Marriage with wife’s sister, batil p. 158. K ashf

Marriage with maharim p. 64.

Khulasa

Sodomy with a woman, mahar not payable p. 122

K ifaya

Adultery, cases where no hudd for p. 47. Marriage, definition of p. 4

with more than four women p. 228 with two sisters pp. 101, 103, Nikah, meaning and essentials of p. 125. Rajm, authority for p. 49.. (24) Lubab.

Butlan and Jasad, synonymous terras p. 69.

(25) Mabsut

Marriage with two sisters. (a) if held together, both invalid (b) if successive, first valid, second invalid p. 168.

(26) Majma-ul-Anhar Butlan and fasad, no difference between them in marriage p. 68

(27) Majma-uI-Fatawa Marriage between a Kafir and a Muslima batil p. 118.

(28) M ohit Critical exam ination o f pp. 165-171'. Marriages with (1) fifth wife during the iddat of the fourth p. 319 (2) M ankuha p. 121 (3) mo’attada pp. 121, 319 (4) two sisters pp. 121, 143 (5) wife’s sister during the iddat of the wife p. 319. Not available in India p. 166 Rudd disagress with Mohit on questions of (a) a marriage with mankuha (b) a marriage with mo’attada (c) a marriage of a Muslima with a Kafir pp. 114-15, 119.

(29) Moozmirat Moozmirat, Alamgiri and Baillie p. 31.

(30) Mujtaba cases where iddat becomes obligatory pp. 114-5. (31) Rudd-ul-Muhtar Bar to marriage must be removed before marriage p. 74. Batil and fasid marriages, no difference except in iddat pp. 69, 245, 308 Classification of prohibited women p. 17. Collection of maharim, explanation p. 16. Customary dower, when becomes due pp. 122-3. Durr-ul-Mukhtar, comments on pp. 119-22. Fasid marriage, what is pp. 112-16. Hudd, cases where not inflicted pp. 116-17. Iddat, obligatory in twenty cases pp. 109-10 M arriage ( 1) with a hamila p. 287 (2) with a mankuha pp. 252-3 (3) with a mo’attada p. 307 (4) with two sisters p .lll Shubh, discussion of pp. 116-17

Shubh-fil-mahal, instances of p. 56 Talak, distasteful to God p. 278 Who should be present in nikah p. 239 (32) Sharhe Viqaya.

Invalid marriage, dower payable on co-habitation only p. 126.

Marriage with mankuha p. 256

Marriage with wife’s sister invalid p. 158 (33) Tafsir Kabir Division of prohibited women p 78 Iddat, various periods of pp. 304.5 Chart of above p. 306 M arriage (1) of a Kafir with two sisters, effect of his conver* sion on his marriages pp. 97-8. Difference of view between Hanifa and Razi p. 98

(2) with a mankuha p. 251

(3) with more than four women p. 227

(4) with a scriptural woman p. 200

(5) with two sisters pp. 91-9

(6) with wife’s sister during wife’s iddat p 95 Arguments of Shafei and Hanifa pp. 94-6 Quranic verse 4.4.1., Tafsir of pp. 92-4.

(34) Tahtavi

Fasid marriages, instances of pp. 117-8. Criticism of his views pp. 118, 119

(35) Tanweer-ul-Absar Fasid Marriage, dower payable in p. 112

(36) Tawzih Talwih Marriage with prohibited women batil p. 65.

(37) Viqaya Marriage, definition of p. 125 Marriage legalises enjoyment p. 125

(38) Zakhirat-ul-Uqba Fasid Marriages, instances of p. 128

(a) marriage with fifth wife during iddat of fourth w ife

(b) marriage with wife’s sister during wife’s iddat

(c) marriage without witnesses

Marriage with two sisters p. 158 (39) Zineea

Tf a Pers°n marries a prohibited woman knowingly ar,d cohabits with her, he is guilty of Zina P- 115. Texts, English

(1) A bdul Rahim

Marriage with two sisters held simultaneously p. 139. Void and vitiated marriages p. 19. (2) A bdul Rahman

Classification of prohibition p. 19 Divorces, one or two, effect of p. 302 Divorces, three, effect of 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 one contract, both void p. 138 (b) by successive contracts, second void p. 139 (c) if one was observing iddat, marriage with other valid pp. 138-9

(d) if priority not known, both void p. 139

(6) second marriage alone consummated, earlier one remains valid p. 139. (6) Marriage without witnesses p. 249. (3) Amir Ali

Attaches excessive importance to Fatawae Alamgiri pp. 171-2

Classification of causes of prohibition pp. 37-8 criticises Baillie p. 21 Definition of Nikah p. 4 Does not refer to Quran pp. 89-90 His contradictory statements pp. 173-80 M arriage (1) with hamila pp. 287-8 (2) with mankuha pp. 253-4 (3) with rno’attada pp. 299, 310-11 criticism of his views pp. 311-15 (4) with more than four women pp. 232-4 criticism of his views pp. 234-6 (5) with mushrika pp. 216-22 whether the prohibition is political in nature pp. 225-6 . (6) with mutallaqa p. 267 (7) with two sisters p. 140-2 criticism of his views pp. 171-87 (8) without witnesses p. 246 Criticism of his views pp. 246-7

B aillie Difinition of nikah p. 4 Does not refer to Quran p. 89 Duration of iddat p. 299 Hanifa’s view to be preferred to those of his disci­ ples pp. 31-3. His work p. 20, its criticism pp. 21-35 M arriage

(1) With hamila pp. 286-7

(2) With mankuha p. 254

(3) With mo’attada pp. 309-10 (4) With more than four women pp. 230 I Criticism of above pp. 233-6 (5) With Mushrika pp. 207-8. Criticism pp. 208-13 (6) With mutallaqa pp. 266-7. Criticism pp. 279-84 (7) Without witnesses pp. 240-2 Criticism pp. 242-6.

(5) Macnaghten Definition of marriage p. 4 Marriage (1) With a mankuha pp. 255-6 (2) With more than four women pp. 229-30 (3) With scriptural women p. 205 (4) With two sisters pp. 138, 144 (5) With two women related to each other within prohibited degrees p. 138 (6) Without witnesses p. 284

(6) M oham m ad Y usuf Bar of prohibition must be removed before marriage p. 229

Marriage with a mushrika p. 214 Periods of (a) gestation and (b) iddat of an Aysa woman, how calculated p. 295.

(7) M ulla Marriages

division into Batil, Fasid and Sahih p. 19 ( 1) with mankuha pp. 254-5 (2) with mo’attada p. 316 (3) with more than four women p. 232 (4) with mushrika p. 216 (5) with mutallaqa p. 267 (6) with scriptural woman p. 216 (7) without witnesses pp. 247-8 (8) of a muslima with a non-Muslim p. 216.

Pregnant widow, period of iddat of p. 300

( 8) Russell and Suhrawardy See Ibn Abu Zaid

(9) Saksena

Marriage, form of Contracting p. 249 Unlawful conjunction, marriage irregular p. 139

(10) Tyebji

Not based upon original authorities, but mainly upon Baillie and Amir Ali p. 143 Supports Baillie’s views on fasid marriage p. 151.

(11) Wilson

Definition of marriage p. 4. Iddat of a pregnant woman p. 300 Marriage, how to be contracted pp. 248-9. Marriage with

(1) mankuha p. 254 (2) m o’attada p. 309 (3) more than four women p. 230 (4) mushrika p. 206

Effect of a marriage with a mushrika p. 107 (5) Mutallaqa pp. 267-8; 277-9 (6) Zawat-ul-Arbam p. 138

Rules restrictive of intermarriage p. 18 T ext, Urdu Majma-ul-Fatwa A Hanafi can follow Shafei law in some matters p. 339

W ife Quran grants full permission to enjoy p. 334 except during menses pp. 221, 334.

Zina Accusing woman of, heavy punishment for p. 42 Circumscription of the term Zina p. 47 Definition, Quran does not define Zina p. 184 Later jurists define it p. 185, Hedaya p. 28, 29, Qazi Khan p. 46. Hudd, may not be awarded though co-habitation is Zina pp. 28, 29-33, 47, 48 Punishment for pp. 46, 48, 49

Quran, what it assumes to be Zina p. 185. Rajm, authority for p. 49.