MODERN REFORMS IN MUSLIM FAMILY LAWS — A GENERAL STUDY Author(s): Syed ALI RAZA NAQVI Reviewed work(s): Source

: Islamic Studies, Vol. 13, No. 4 (DECEMBER 1974), pp. 235-252 Published by: Islamic Research Institute, International Islamic University, Islamabad Stable URL: http://www.jstor.org/stable/20846925 . Accessed: 13/10/2012 03:37
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of the classical and opinions of thejurists otherschools formsin the light reasoning of of juristic codes. Iran. each following a different type of family laws.MODERN REFORMS IN MUSLIM FAMILY LAWS ? A GENERAL STUDY* DR. The second group. particularly during the last mid-century. and also disallows any innovation in the classical law Muslim even in the light of the opinions of the classical jurists of other schools of law. and that Islam is basically in conformity with nature. a modern approach to religion is being advo cated inmost of theMuslim countries today. It also allows legal re *Agist of this paper was read at the All Pakistan JuristsConference in Karachi. such as Pakistan. there have been for legal re Three Groups: groups. follows the letter the classicalMuslim law of including most doggedly and tenaciously. Iraq and Tunisia. 1974 ?EDITOR . The Muslim intellectuals have tried to prove that there is no contradiction between Islam and science. some dynamic movements forms. S. and would not accept the least deviation from the classical juristic opinions contained in the legal codes of their respective schools. Syria. is ready to find solutions for its present problems of family laws in the law and allows the exercise of free judgement original sources of Muslim and re-examination of Muslim law. countries in some of the Muslim since the cure for the Special attentionis being paid to find suitableand effective different social and religious evils obtaining in theMuslim society. Simultaneously. the Sudan. on February 10. ALI RAZA NAQVI I? General Generally speaking. The Muslim countries todaymay be divided into three major The first group. Jordan. It is the natural outcome of the various movements for religious. social and political reforms launched last century. Saudi Arabia. Egypt. including most of theMuslim countries of today.

though rarely. This group has accepteda completeequalityof sexes in almostall the family affairs. according to the precedents of laws are searched not only in the particular school to This liberal attitudeis not limited thevariousorthodox schools law alone but also extends. particularly those belonging to the secondgroup.but also in theother more inkeeping which thelaws with the ved in publicweal arebeingderived from the source books of various schools ofMuslim law without any bias. One relates to i in a the triple divorce single session.a more liberalview is being adopted in the fieldof leg which of law towhich thepeople of that school belong. recognized schools of Islamic law. Act. has adopted are not fully in keeping with the classical a number of doctrines which . This of the Muslim countries. Eclecticism: In most islation. The second doctrine relates to the per stirpes distribution of inheritance of Shi'ah law. NAQVI The third group. in her family laws at least three doctrines of Shi'ah law. including Turkey and Algeria. Pakistan occupies themost unique position. and has framed tached itself the familylawsmostly on the lines of theWestern countries. permits a wife to demand dis upon which the IJanafllaw. This rule has been incorporated in theMuslim Family Laws Ordinance of 1961. It is a country having a majority of IJanafl Likewise. but which is counted as a single divorce under Shi'ah law and therefore no prohibition is incurred.R. Yet the Dissolution in Pakistan. Pakistan has also accepted and incorporated The only ground followers.236 A. solution of her marriage is premarital impotency. in fact. has almost de fromtheclassical schools ofMuslim law. an eclectic system is being evol has given rise to the tendency of eclecticism. counted as three under the to the classical HanafI law and therefore rendering the wife unlawful husband. of SunnI Among these countries. as opposed to that of per capita distribution of the IJanafi law. applicable recognizes fourteen ofMuslim Marriages other such grounds as well. Iran. section 10. Thus. or the marriage contract. though a Shi'ah majority country. to the doctrines of the extinct school of ?ahirls and the schismatic sect of the SM'ahs. the entire amount shall be presumed to be payable on demand.* The third relates to the doctrine of Shi'ah law that where no details about the mode of payment are specified in the Nikafinamah.

In a number of these countries women have gone a long way towards achieving their goal of emancipation. Ottoman Mecelle in the sub-continent the Child Marriage Restraint Act Likewise. It confers no rights on either party over the property of other Inspite of all the freedom granted by Islam to women.MUSLIM FAMILY LAWS237 ShFah SunnI law and law. in course time a number of evils crept into the body of the jurists-made law. of reforms were Child Marriage: One Muslim of minor teen. of her entering into all contracts. she retains the same powers of using not sunk in that of the husband. of the basic reforms brought about inmodern times in some The countries is the prohibition of the marriage of minors. in Pakistan the marriageable age of females was Muslim Family Laws Ordinance of 1961. therefore. and not a sacra Marriage. and disposing of her property. a number spirit of Islam. and they have been granted rightswhich were hitherto denied to them. as if she were still unmarried. II ? Marriage the theirconditionby raisingtheirlegalposition and removing hurdles ment. Thus. the legal capacityof thewife is in Islam. is essentially a civil contract. so long as she is not insane she is under no legal tutelage of her husband. in Egypt a law was passed prohibiting the below six registration of marriage of males below eighteen and females Contrary to the classical Muslim family law where physical puberty is the basis of majority. of a sympathetic and humane attitude towards Basic efforts are being made for ameliorating in the way of their active participation in the national life. raised to sixteen by the (1917)4 was the first regular law forbidding themarriage children. Later. Later. In Islam. themodern Muslim family law recognizes a specified . during the latter's lifetime. found necessary and expedient. of which were responsible formany a corrupt practice incompatable with the In recent times. 3 are sometimes rather in accordance with the classical More Rights toWomen in of Muslim countries main trends legal reforms the One of the is the result of adoption the plight of womenfolk. and females (1929) also prohibited marriage of males below eighteen below fourteen.

sixteen is permissible with the and Turkey). In almost every modern Mus eighteen where it is seventeen. Marriage below thesespecified ages fifteen formales Guardian's for for while in Jordanand Syria it is fifteen males and thirteen females.where no de Pakistan is theonly country As alreadymentioned. in Iran and Morocco. but thanofficial registration. while in most countries the minimum marriageable ages are also specified. seventeen prior sanction of the court on proof of sexual maturity. Unregistered marriages. For example. section 10. Tunisia (Iran. such marriage before eighteen provided that the marriage was contracted sixteen and that the marriage has not been consummated. in Turkey the consent of minors' sufficient for contracting minors' marriage. NAQVI formarriage. the guardians still enjoy such rights. a marriage may be proved by means other registration.238 age as an essential qualification In case of females. In Pakistan.a marriage can be proved only by an officialcertificate of In these countries. except in it Turkey it varies between (Iraq). for limcountry iseighteen males. although the parties are liable to some statutory penalties. A. however. (Pakistan)and fifteen (Syriaand Jordan). Un in the application of the classical der theMuslim Family Laws Ordinance of 1961. and sixteen respectively both sexes. guardian is necessary In most the modern under the Muslim Family Laws Ordinance of 1961 a girl may repudiate before she was Likewise. Registration: and registration of all marriages The Ottoman Mecelle (1917)was again thefirst regularlaw making compulsory. In Turkey it is for Iraq it isfifteen and fourteen for females. Dower: majority where an amendment has been made according to the Shi'ah law Sunnt law in respect of dower. inEgypt and Iran since 1931and inTunisia since 1957. to Contract Muslim a Minor's Right Marriage: legislation has almost to contract a minor's mar the guardian's right completely abolished riage. are not modern Muslim declared legally invalid. below which no claim of sexual maturity would be heard.R. though countries. however. Registration of marriages is now a compulsory legal formality in countries. with a SunnI . however.

where polygynyis legally law in the strict prohibited and a punishment is provided for the defaulter. intending to contract a second marriage is required to obtain Syria a man The Iraqi law adds a proviso that there must be an official permission. Tunisia is theonly sense of theword. In however. The Moroccan Law of co-wives". the tails about the marriage payable contract. second marriage.it is being of maintenanceof thechildrenis thejoint responsibility emphasized that . contracted by ?hafi4i some countries. complaint of the wife. Pakistan and of another marriage as "void"." In Syria the court where it is establishedthat the husband is not may refusesuchpermission in a position properly to maintain Maintenance: and support another wife. like India and Malaya. without the consent Polygyny: Mecelle (1917)was thefirst The Ottoman regularlaw where a stipu another wife duringthelifetime the lationprohibiting husbandfromtaking wifewas declaredas valid. the entire amount of the dower shall be presumed on demand. of his first Muslim Muslim country following the Today. inmost Muslim countries. Turkish law and declares a marriage contracted also clearlyprohibits during polygyny the subsistence 1958does not permit polygyny"if any injusticeis to be fearedbetween and also allows the courts to grant a judicial divorce on the In most countries like Iran. is essential for the validity of the contract a MalikI woman can contract her own marriage. In thefield of maintenance. marriages that the woman's consent are held as valid on the ground that girls without their guardian's consent itwas admissible to apply the more liberal Hanafi doctrine in such cases.Likewise. In Turkey too an adult female can contract marriage of the guardian.MUSLIM FAMILY LAWS 239 or mode of paymentare specifiedin the nikahnamah. and gives "some lawful benefit involved" in the proposed the court the discretion to refuse permission for such marriage "if any failure of equal treatment between co-wives is feared. Iraq. with the adult woman is stillobtaining inthe proviso In Tunisia. to be Capacity of Women: The classicalMalik! rule of a guardian's rightfor giving even an Sudan andMorocco.

through a judge. to thewife. though Except for pre-marital impotency. however. including even the father. it is generallyprescribed law that the children shall be placed mother over the females until they are married. NAQVI of children devolves upon themother. a remarriage of the couple is When possible without the intervention of an intermediary husband. by theMoroccan* Ill ? Judicial Dissolution: alone. the husband shall pay compensation before consummation. whether by divorce or on husband's death. other causes to demand as well. of the father. but ifpronounced after consummation he shall be liable for the The separation. This rulehas alreadybeen accepted theparentsand not of thefather Muslim countries.broadly based on a Malik! doc most Muslim countries. the right of the woman of It also recognizes dissolution on marriage other grounds recognized as valid under Muslim law. dissolution for fourteen. with variations is applicable today in trine. it iscalled it law of treating as a single divorce*if the word falaqhas not been employedby thehus an 'imperfect . the mother over all other relatives. As regardsthe effect a triple Iran and Pakistan.240 A. takes place payment of the full dower. the classical Hanafi law practically does not allow a wife to demand dissolution of her mar entitles a wife to demand with a majority of riage on any otherground. The rule of judicial dissolution. and Turkish6 laws.suchas Iran and Tunisia where failing in some of the for in thefather(and grandfather. pronounced band in the pronouncement.R.except in Malik! law which gives such a rightto the in the custody marriage. the doctrine of Shi'ah In such cases. such as of divorcegiven in a single session. case of Iran) the liability maintenance The same rule has been followed Divorce on minor details. divorce isbeing followed. Custody ofChildren: by the classical Muslim In case of dissolution of a marriage. though The Dissolution of Muslim Marriages Act of 1939 IJanafi followers.7 precedence So far it is only inTunisia that in the event of dissolutionof a enjoys Triple Divorce: in some countries. But in Pakistan. In Egypt.

or where the repudiated wife is pregnant. it entirely sweeps away the classical distinction between a revocable and an irrevocable divorce. This primarily has been the designed to afford greater opportunity for reconciliation between estranged couple and also to prolong the spouses' mutual tance until their divorce becomes absolute. has completely abolished the extra-judicial divorce. (Section 31). there are no law.* a faldq pronounced "in any form whatsoever" will not be absolute until ninety days after the delivery of the notice. under The Muslim Family Laws Ordinance of 1961. The same rule is followed in Iran which declares that "a third di to three consecutive matrimonial connec vorce taking place subsequent whether by way of a recall or a fresh contract" shall be irrevocable. for legal purposes. the first two divorces shall be treated as revocable. the marriage continues a decree of divorce. whichever period be longer. The same procedure is to apply "where any of the parties to a marriage wishes to dissolve the marriage otherwise than by faldq". whete even ifeither thepartiesdies beforetheexpiry the wife's of of legalrights same view has also been adopted by the Turkish there is no conception of a revocable divorce. and Mubdrat) which.e. the Sudan. until the court issues and since the decree is final in all cases. In Tunisia.MUSLIM FAMILY LAWS241 Irrevocable Divorce: restriction on the husband's power to terminate themarriage immediately by pronouncing a final and irrevocable divorce. terminate until the cases of extra-judicial divorces by mutual In Egypt.. Thus. however. Syria.9 tions. . shall not be so under the present law. until the delivery of the child. rights of inheri One of the principalmodern reformsin theMuslim law is the In Pakistan. Thus. The to exist. Morocco and Iraq the same view has been accepted and the old system of pronouncing a final and irrevocable divorce by a single formula has been abolished by the rule that every pronouncement of faldq which is not the third in a series of separate pronouncements shall take effect only as a revocable divorce. In all cases. This clearly covers KhuV Thus agreement (i. the spouses' mutual rights of inheritance shall not their separation is declared final by law. under the classical Muslim law con though stitute a final and irrevocable divorce. the Tunisian Law of Personal Status of 1956. whether by faldq or mutual consent. Jordan. *iddah.

and at the same time most controver in sial reforms broughtabout inMuslim law of inheritance modern of times relates to the inheritance a grandson (or grand-daughter) a by allot to him (or her) a share thatwould have belonged to his (or her) at of parenthad he (or she)been living thetime theopeningof succession. to a more realistic and progressive approach. bureaucrats. tries and have completefreedom for receiving highereducation. there for qualification holdinga particular giving place in thesocietyisgradually way In a number of Muslim women enjoy franchise. . 2. In most of these coun Now Muslim women are participating in the programmes of national development and are holding responsible and key posts in some Muslim countries.R. theyshouldpossess countrysubject to the sole conditionthat.like the necessary qualifications for it. theycan aspire to hold any position in their men. adds that the share shall not exceed one-third of the total estate of the deceased grandfather. NAQVI IV ? Inheritance Inheritance One of a Grandson of the most essential. a person has been compelled to be Muslim adherents the of fore. the concept of women's dis law. A more Sometimes. the same liberal the Shi'ah law. predeceased son or daughter. Equitable Treatment of Women: countries.242 A.io towards the doctrines of the Shrah the doctrines of the various as well. Liberal Suggestions Attitude towards other Schools: while a numberofMuslim countries Generally it is observed that a Sunn!majorityhave allowed their having people to opt forany of the four classical SunnI without the necessity of changing adherence from their original has attitude not been adopted by them towards school. Today. doctors. V ? 1. schools of law in a particular case of family affairs make an official of renunciation his originalsect inorder to benefit from a particular doctrine of the Shi'ah law. therefore. The family laws of Pakistan and Egypt The Egyptian law. where they are working as professors. may better adoptedby the majority sect A similar liberal attitude towards law seems advisable in Iran schools of SunnI liberal attitude. however.

5. Therefore. Polygyny: An 'Ali says It is suggusted that likeall marriages. Such restrictions have. in case of more than should be complete equality between the wives. on their husbands. Nowhere countries.13 The only Muslim one marriage absolute justice there in the that polygamy was permitted by Islam on account of the socio important reform in favour of women and in the general interest therefore. thus. Ifwomen are grantedbetterand equitable rights. and recalls must also Iran. therefore. the proviso to the permission transforms it into prohibition. proved only deterrent. law. more justified in demanding ambassadors and family affairs. The systemof mock dower is still prevalent in some Muslim It must be legally fobidden. to contribute a greater share in the different walks 3. tries who have brought about some modern reforms in their family laws have allowed the conclusion of a second marriage with the permission of the court of law. conclusion of a marriage during the subsistence of another must be declared void in all the Muslim countries.* * and an equitable treatment as more particularlyin the field of honourablemembers of the society. and therefore subsist after the man has undergone the punishment provided it may for the defaulter. As matter of feelings of love and affection is clearly impossible. A Registration in the family law courts. particularly They are today less economically dependent are. as is prevalent in of familylifeis theabolitionofpolygyny. except in most rare and deserving cases. political needs of theearlyperiod of Islam. Marriage 4. and the dower must be allowed .The passage in the Qur'an more inthe which is said to allow polygamy(IV:3)i2 is nature of a pro hibition thanpermission-Evidently polygamy is not permittedin all circumstances? Moreover. Ameer Advocating suchreforms. but they have failed to do away with the evils of polygyny. registration all divorces of be made compulsory by Act of Iran. will they be able of life. vide. is the second marriage declared void.MUSLIM FAMILY LAWS 243 even judges. Dower: country (following theMuslim law) where poly All the other Muslim coun gyny is clearly prohibited by law is Tunisia. (Section 1).

^4 of Children: 6. emphasison thecondition of mahr (or dower) the with the hus findcontinuanceofmarital life of thehusband should they intolerable. Status. if she has the means. Maintenance band In the classical maintenance of law. NAQVI commensurate with the social status of the spouses. under the may have a rich paternal grand-father. themselves on behalf women prefer to stipulate the option for divorcing Inmodern times. becomes responsible for the maintenance of her children. of to support the children in the event recognizes the mother's responsibility of the father's poverty to precede the responsibity of the grandfather. even though she be rich. the liability for the maintenance of his children rests primarily on the grandfather. and not on the mother. even though the children the other hand. where a father is destitute. if the father be poor. holds a mother The modern Itmay be noted that the Tunisian Code of her children in the absence of their responsible for the maintenance father and paternal grandfather. and the sum advanced remains a debt against the father to be recovered when he is in easier circumstances. and therefore obviously does not hold a mother legally responsible for the maintenance of her children in the inability of the father or the paternal grandfather. On the other hand. 7. reforms in this field have event of the poverty or This rule has already been accepted parents and not of the father alone. It would be quite in conformity . if he have means. Maintenance The of the Wife: of must be thejoint responsibility the Maintenance of thechildren countries. Personal section 47.R. But so far there is no provision in the laws of any for keeping in view the financial position of thewife at the country time of deciding about the separation. section 1119. as explained above. the Iranian Civil Code. a father is alone responsible for the the children. in some of theMuslim countries. the Hanafi mother. On law. Tunisia and Pakis tan entitle a wife to obtain a divorce from the husband where the husband laws of some Muslim has failed to maintain Muslim her. and must be enforced through legislation in other Muslim countries as well. classical Shi'ah already been mentioned. However. and instead of the dower a number of is getting weaker and weaker.244 upto the amount A. such as Iran.

occupy a great im a direct bearing on the determination portance in the society . 9. Custody The of the Children: must be the duty of thewife not only supportherselfand thefamily. but also of her husband. and hand ving the poor child of the natural affection and of his moral.it to pay for the maintenance laws relating to the custody of the children. with the principlesof equityand justice to refusethedivorce demanded 8. and thus depri snatching the child from the affectionate love of its mother. while to support herself and her children. socia1 ing it over to the father.MUSLIM FAMILY LAWS 245 by a wife merely on the ground of the husband's failure to support her. even if she has not contributed to the causes for the for isTurkey. it is only Among the classical Muslim supporting her husband. while on the contrary the wife is prosperous through This will also save the family from the enough to support herself. Ibn Hazm who has gone a step further by holding a wife responsible for of her husband during the subsistence of the matrimonial the maintenance family.15 The classicalMuslim law in no case holds a wife responsiblefor to and inability support himself and his tie in case of the latter'sindigence where the rule of wife's liability her for The onlyMuslim country husband's maintenance of her "innocent" husband commensurate with her position for a period of one year if the latter faces acute financial stringency con sequent to the divorce. The Turkish law1*holds a wife responsible paying for the maintenance. financial incapacity when the failure is the result of the husband's no fault of his own. arbitrary principle of care of themother. as is still followed inmost of reason and justice. disastrous consequences of separation. enunciated by Ibn Hazm. particularly after the dissolution of the marriage or death of the father. without any consideration and material the Muslim capacity. has so far been followed divorce! It seems advisable that a law should be enacted in all the Muslim the wife is able to countries so that if the husband becomes destitute. cannot stand the test of countries. Maintenance Husband: of the jurists. as they have of the general character and habits of the children as well as on the forma The tion of their moral and material outlook. .

though married to a stranger. carries some weight. the same principle may be followed. no doubt. must better be Muslim countriesalike. This quite unfounded and unnatural. where the child is a female. or sometimes make due sti in their marriage contract with the second husband in respect pulations affection. the stranger man not relatedto the infant not be agreeable to her bringing up the childwith due care and would This latter argument. in case of children who though not pubert. themother. or mental con except when. even the modern) According Muslim law. This is generally the mother. The Malik! law entitlingthemother to the custodyof the female being most reasonable. a greater tenderness. Where the siderations. where thewomen may in many cases have economic independence. be entrusted to the person who shows by nature or by observation and experience. . not falling under the category of infants. NAQVI children until they are married.246 A.R. or of age. deciding about the custody of comparatively older children. of their rightto bringup their her children on contracting a marriage with a stranger. followedby all the to the classical (and in most cases. the decision may be made court with their consultation and by their choice. childrenfromthefirst husband. and very rarely the father or paternal grandfather. preference should be given to the mother. a marriage of the mother with a "stranger" deprives her woman facie entering the new family will not have the same her children from the first husband as before. thebasic principle to be followed As regards the order of preference inmatter of custody of an infant In case of adult children. love and affection to the child. formoral she is found unfit for the custody of the child. but it also not apply in the present-day changed conditions. yet special consi derations regarding the interests of the children may require that its custody the forfeit rightof custodyof Although a woman may ordinarily should be retained by her when. While discreet enough to discern their interest. are yet However. by the must be that thecustody should child. is better qualified for upbringing the child. of the right thecustodyof her childrenunder the presumptionthata of argument is prima love or affection for In thisconnection it is also argued that if themothermarries a within the prohibiteddegrees. contrary to the father and in the absence of other qualified near female relatives.

for dissolution. but in the event of a post-marital impotency of So also sterility thewife is considered a sufficient ground in it but ifthehusband is sterile. held as a sufficient cause justifying the wife's demand order to enable her tomarry another husband. is.insanity of the spouses.MUSLIM FAMILY LAWS247 child is with male. already been accepted by the Iranian law*8. therefore. advisable that before issuing a decree of separation. 11. wife is generally the most countries. isnot in somecases after dissolvingthefirst. as isproved by experience. must be allowed to demand dissolutionofmarriage on similar theparties on the ground of blemishes in the spouses is also necessary. The husband must not be allowed to exercise his right without the intervention of the court of law. including Pakistan. and the court shall make all possible endeavours will must The freedomofman in divorcingthe wife of his sweet to . incurable impotency of the husband. for dissolution in for justification of a second marriage. he may be allowed tomake his own choice and to stay eitherof theparentshe prefersto stay with. must be generally treated dissolution. is held as a suf far inmost Muslim countries the pre-marital impotency ficient cause denied thisright. It may prove careless towards his children after marrying another wife. Blemishes Allowing Dissolution ofMarriage: mother ratherthan thefather who. todyof the the court may deem independence learning and the economic it advisable to entrust the child to the cus A judicious revisionof the laws relatingto thedissolutionof the marriage Except in a few deserving cases. In every case where either of the parties demands separation. whether pre-marital So or post-marital. must also entitle the wife to demand dissolution. cause entitling the other party to demand This idea has grounds. Right ofDivorce: be subjected to more restrictions. the court of law must ensure a proper arrangement for the protection. Both Likewise. he/she must apply to the court of law. 10. maintenance and custody of the children. whether as a sufficient pre-marital or post-marital. Today with the of education and advancement of women. The matter of custodyof thechildrenshould betterbe leftto the judicious discretionof competentfamily law courts.

Sometimes when she returns to her father's or brother's house. 'Umar. cated enough or otherwise able to earn her livelihood. Caliph both moral and material. If.all the efforts thecourt in this respect prove fruitless. This will consisting make proper and expeditious settlement of family disputes possible. Ransom Payable by the Wife: The to demand classical as well as modern Muslim law allows a ransom from the wife in lieu of divorce the husband on her demand. in case of thecountries may In view of the present fast and quick communication media. thehusband. to a report. divorce the wife is generally left in penury. she has to put up with all sorts of humiliations and sufferings. classical law has not taken account of the woman's to why the needs. theamount of thedower paid by thehusband to the 13. It is also most advis to must be referred specialcourts dealingwith able thatall family disputes of competent affairs thefamily judgesof both sexes. NAQVI of bringabout a conciliation. Missing Husband: whether any ransom is at all required to be paid by the wife. a more . in most deplorableconditionifshe isdivorced inher old isparticularly the Generally.R. in the absence of any other alternative.248 A. itmay allow Divorce must be the parties to separate.however. after According must be prescribedas to theperiod forwhich a wife (or reasonable limit where polygamyis prohibited). a reasonable amount must be fixed by the court on the merits of the case.** because as a result of a strictly discouraged. of must also be leftto thediscretion thecourtwho may decide This matter of which in the light the Qur'an (11:229)20shouldnot be allowed to exceed wife. The ShPah andMalikI schools ofMuslim law allow thewife of a missing to contract another marriage after four years and the husband law after seven years. 12. and if so. except in a few cases. A woman age. when she has already lost the opportunity and hope of marrying an The misery ismanifold when the divorced woman is not edu other man. while under the Hanafi law the period varies Shafi'I between 60 and 120 years! The current Iranian law has also adopted the view of the classical Shi'ah law.2 i It is not undertsood as be required to wait for the return of the spouse. it is being stressedby theMuslim intellectualsthat thewifemust be given an equal rightof divorce.

it will mean ciples of equityand justice. though not sup ported by any classical authority is. Inheritance of Wife and Grandson: Under the classical Muslim law if the husband is the sole surviving estate of his wife.* 4 This requires a special consideration of the Muslim jurists for finding an equitable solution of the problem.MUSLIM FAMILY LAWS249 due enquiries from her daughter as to the maximum period for which a woman may have patience. geographical. it may entail inheritance and other relevant matters. Shi'ah and SunnI both. but the same countries to find some proper solu heir. law of inheritance. though in case a wife reappears after the husband has taken another wife. racial. prohibition is imposed on the husband's taking another wife. and circumstances missing it entirely omits the case of a missing wife. It is necessary for all theMuslim tion for removing this lacuna. in accord with the prin trine adopted father. climate. age and other individual conditions. already mentioned. according to the differenceof may vary with different in of the limit may be leftto be determined consideration the condition of the individual cases. he is allowed to inherit the whole principle is not observed where the wife is the sole surviving heir of her husband. for the poor fellow has already . and no husband. Thus limit women. ordered that no Muslim soldier should be Once compelled to be away from his wife for more than four months. The Turkish law. 14. nevertheless. If a son (or daughter)of a predeceased son from (or her) deceased grand his (or daughter) isdeprivedof inheritance a double misfortune. As regards the inheritance of a grandson (or grand-daughter) by it is a general princi a predeceased son or daughter. that only those ple of Muslim relatives who survive the propositus are allowed to inherit. already mentioned.however. it does not look proper to ask a wife to This wait for more than what is recognized as the limit of her patience. where the law*3 deals with the Muslim country Turkey is theonly cases of the missinghusband as well as themissing wife.** this report is accepted as true.does not provide any particular limit of period waiting and leaves it to the sole discretion of the court. But the doc by Pakistan and Egypt. to while the It is also interesting note that Muslim law treatsof a as some difficulties arisingout of theprohibition to the numberofwives.

which. of children Moreover. . See theTunisian Code ofPersonal Status. section7 (5). and raising the status of women by granting them tenanceof thechildren afterthe separationof theparents. section57. section4. The work of theCommittee codifying the Mecelle was stopped abruptlyby Sultan Abdel Hamid II (1768-1908). is still inLebanon and has only recently evenmore progressivecodes inSyria and Jordan. NAQVI or of been deprivedof the loveandmaterial protection his (or her) father of would onlyadd to his and therefore deprivation inheritance the mother. 1961. however. 1961. though in some those followingthe countries(particularly cases quite progressive. See the Muslim Family Laws Ordinance.at least in spirit. the condition of registration all marriages imposedby the Iranian with thecondition of witnessesunder theSunni law. law is. Notes. almost equal rights withmen in thefield ofmarriage. This will go a Muslim society evilswhich likea cankerare eating into thevitals of the today. itsorigin.abolished is still in force in several countriesof the Shari'ah courts in 1924. some effective measures lation for ensuring proper arrangement long way through legis of custody. The most important legislationof recent timeswas theOttoman Law of Family Rights (Mecelle) promulgated in 1917. 2. of 3. See the maintenance 6. The Turkish law holds both thehusband and wife responsible for the and education of theirchildrenequally. (or her)miseries. and a number of other Some more effective measures reforms seem imperative and expedient. It was. 8. (Turkish Civil Code. 5. section 7. SeeMuslim Family Laws Ordinance. are not quite sufficient. TheMecelle was compiled under the chairmanship of Cevdet Pasha. moral 1.in line 4. section 129. This book Middle East. inTurkey after theabolition of the Caliphate and the Moroccan Law ofPersonal Status. For instance. in eliminating a number of the social. section 151). though no longer obtains in the of been superseded by country. 7.250 A. VI ? Conclusion Muslim in so The reforms fareffected thefieldof familylaws in the Muslim law).R. custody and other family affairs. Ibid. protection and main and even economic must be adopted seem necessary forminimizing the number of divorces and doing away with the consequent evils. divorce.

(vide items of and 19 respectively the prescribed formofNikahnamah). because Allah hath made theone of them to excel theother. and the sum advanced shall not remaina debt against the when he is in easier circumstances_The husband to be recovered authorityfor what Allah says: thisrule iscontained in . The verseof the Qur'an referredtoabove isas follows: (Men are in charge ofwomen. (IV: 34). 18 Nikdfrnamah. 10. This stipulation permittedby the Marriage Act of Iran. section 4. which does not apply in (IV: 34) is the many men have naturally less claim to superiority overwomen in the cases. man's superiority overwoman enumerated in the 11.he had to which allows thedaughter the make a public announcementof his renunciationof Sunni sect and adherence to Shi'ah sect. See theIranianCivil Code. the marriage contract. is a general among the educated women of that country. two or three or four. and so it is also being practice followed in a number of other Muslim countries including Pakistan where the power of divorce may be delegated. p. she shall be liable forhismaintenance. Imtiyaz 'All Taj was a famous Urdu writer and dramatistwho was killed recently in Lahore by unknown persons. Thus it ismore likely thatye will not do injustice). and therefore changed conditions of thepresent-day society. to thewife or the husband's right of or divorce curtailed in the Nos. In order to get thebenefitof the Shi'ah doctrineof succession whole share inabsence of a male issue. and ifye fear thatye cannot do justice (to so many) then one (only) or (the captives) that your righthands possess.MUSLIM FAMILY LAWS251 9. reprint 13. 14. 1922). Qur'an says: (And ifye fear thatye will not deal fairlyby the orphans. 15. See Ameer *Ali. 1965. who seem good to you. section 1145. For instance. He had only one daughter and no male issues. 12. Ibn 9azm says: "If thehusband isunable tomaintain himself. UniversityPaper back.thereis thecase of the late ImtiySz 'AirTaj.marry of the women.and his wife iswealthy. (London. 229. and because theyspend of theirproperty(for the support of women). (IV: 3) The Spirit of Islam. One of the twocauses for Qur'an man's spendinghismoney on woman.

See 'All al-Muttaqi.). II. See TurkishCivil Code. . viii. Cairo. Muslim countries. 1152A. should not exceed thatof thedower paid to her by thehusband. according to the textualauthorityof theQur'an". And on the (father's)heir is child isborn (hemade on incumbent the likeof that(whichwas incumbent thefather). 308. 16. 23. NAQVI manner is upon the mothers in a seemly (The duty of feedingand clothingnursing fatherof the child. section 1122. ProblemNo. 21 The exceptionsare thecases of armed forcepersonnel or thosewhose shiphas been wrecked during thevoyage. section 144. This viewhas alreadybeen adopted ina number of Iran. other heir existed. See theIranianCivil Code. section94 24* The Fatimid juristQa<Ji Nu'man reports two decisions from 'All b. X. 16 and 18 of theAct. 13. 22. (See IranianCivil Code. she is liable to supporther husband. 92..nor should the should not bemade to suffer to suffer) because of his child. A mother man to whom the because of her child. Abi T&lib. 17.including 19. 391). it must prevail among all the schools ofMuslim al-Islam. 18. p. Therefore. 1930. Yol. sections 1020 and 1021). Art. 9. 'All says thata wife is (herhusband's) heir. except may not be able tokeep the limits (imposed by) Allah.H. Pakistan and Tunisia. Kanz al-'Ummal (HyderabadDeccan) Vol. 12. 20 women aught of that The Qur'an says: "It is not lawfulforyou thatye take from when ye fear thatthey which ye have given them. Vide Da'a'im If thisrule is accepted (as reliable. 1sted. See TurkishCivil Code. where the latterdecided to give thewhole propertyto the survivingspouse.(II: 229) This clearly shows that the amount of ransom. p. p. See Muballa (Cairo. Now. 1390.252 A. Vol. No one should be charged beyond his capacity.when no aw. payable by thewife to thehusband.R.

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