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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MODERN REFORMS IN MUSLIM FAMILY LAWS

? A GENERAL STUDY*
DR. S. ALI RAZA NAQVI I? General

Generally speaking, a modern approach to religion is being advo cated inmost of theMuslim countries today. It is the natural outcome of the various movements for religious, social and political reforms launched last century. The Muslim intellectuals have tried to prove that there is no contradiction between Islam and science, and that Islam is basically in conformity with nature. 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, some dynamic movements forms, particularly during the last mid-century. there have been for legal re

Three Groups:

groups, each following a different type of family laws.

The Muslim countries todaymay be divided into three major

The first group,

Saudi Arabia, follows the letter the classicalMuslim law of including

most doggedly and tenaciously, and would not accept the least deviation from the classical juristic opinions contained in the legal codes of their respective schools, 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. The second group, including most of theMuslim countries of today, such as Pakistan, Iran, Egypt, Syria, Jordan, the Sudan, Iraq and Tunisia, 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. of the classical

and opinions of thejurists otherschools formsin the light reasoning of of

juristic codes.

It also allows

legal re

*Agist of this paper was read at the All Pakistan JuristsConference in Karachi, on February 10, 1974 ?EDITOR

236

A.R. NAQVI

The third group, including Turkey and Algeria, has almost de fromtheclassical schools ofMuslim law, and has framed tached itself the familylawsmostly on the lines of theWestern countries. This group has accepteda completeequalityof sexes in almostall the family
affairs. Eclecticism: In most islation. This of the Muslim countries, particularly those belonging to

the secondgroup,a more liberalview is being adopted in the fieldof leg

which

of law towhich thepeople of that school belong,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. recognized schools of Islamic law. Thus, an eclectic system is being evol

has given rise to the tendency of eclecticism, 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, though rarely, to the doctrines of the extinct school of ?ahirls and the schismatic sect of the SM'ahs. of SunnI Among these countries, Pakistan occupies themost unique position.

in her family laws at least three doctrines of Shi'ah law. One relates to i in a the triple divorce single session, counted as three under the to the classical HanafI law and therefore rendering the wife unlawful husband, but which is counted as a single divorce under Shi'ah law and therefore no prohibition is incurred. The second doctrine relates to the per stirpes distribution of inheritance of Shi'ah law, as opposed to that of per capita distribution of the IJanafi law.* The third relates to the doctrine of Shi'ah law that where no details about the mode of payment are specified in the Nikafinamah, or the marriage contract, the entire amount shall be presumed to be payable on demand. This rule has been incorporated in theMuslim Family Laws Ordinance of 1961, section 10.

in fact, permits a wife to demand dis upon which the IJanafllaw, solution of her marriage is premarital impotency. Yet the Dissolution in Pakistan, Act, applicable recognizes fourteen ofMuslim Marriages other such grounds as well. Pakistan has also accepted and incorporated

The only ground followers. It is a country having a majority of IJanafl

Likewise, Iran, though a Shi'ah majority country, has adopted are not fully in keeping with the classical a number of doctrines which

MUSLIM FAMILY LAWS237

ShFah SunnI law and law. 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. 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. In a number of these countries women have gone a long way towards achieving their goal of emancipation, and they have been granted rightswhich were hitherto denied to them. II ? Marriage

the theirconditionby raisingtheirlegalposition and removing hurdles

ment.

she retains the same powers of using not sunk in that of the husband; and disposing of her property, of her entering into all contracts, as if she were still unmarried. Thus, so long as she is not insane she is under no legal tutelage of her husband.

during the latter's lifetime. In Islam, the legal capacityof thewife is

in Islam, is essentially a civil contract, and not a sacra Marriage, It confers no rights on either party over the property of other

Inspite of all the freedom granted by Islam to women, in course time a number of evils crept into the body of the jurists-made law, of which were responsible formany a corrupt practice incompatable with the In recent times, therefore, a number spirit of Islam. found necessary and expedient. of reforms were

Child Marriage: One Muslim of minor teen. of the basic reforms brought about inmodern times in some The countries is the prohibition of the marriage of minors.

Ottoman Mecelle

in the sub-continent the Child Marriage Restraint Act Likewise, and females (1929) also prohibited marriage of males below eighteen below fourteen. Later, in Pakistan the marriageable age of females was Muslim Family Laws Ordinance of 1961. raised to sixteen by the

(1917)4 was the first regular law forbidding themarriage children. Later, 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, themodern Muslim family law recognizes a specified

238 age as an essential qualification In case of females, however,

A.R. NAQVI formarriage. In almost every modern Mus eighteen

where it is seventeen. for limcountry iseighteen males, except in it Turkey

it varies between (Iraq), seventeen

prior sanction of the court on proof of sexual maturity, while in most countries the minimum marriageable ages are also specified, below which no claim of sexual maturity would be heard. For example, in Iran and

Morocco, Tunisia (Iran, (Pakistan)and fifteen (Syriaand Jordan),sixteen is permissible with the and Turkey). Marriage below thesespecified ages

fifteen formales Guardian's

for for while in Jordanand Syria it is fifteen males and thirteen females, and sixteen respectively both sexes. In Turkey it is for Iraq it isfifteen
and fourteen for females. to Contract Muslim a Minor's

Right

Marriage:

legislation has almost to contract a minor's mar the guardian's right completely abolished riage. In Pakistan, however, the guardians still enjoy such rights, though countries, such marriage before eighteen provided that the marriage was contracted sixteen and that the marriage has not been consummated. guardian is necessary

In most

the modern

under the Muslim Family Laws Ordinance of 1961 a girl may repudiate
before she was

Likewise, in Turkey the consent of minors' sufficient for contracting minors' marriage. Registration:

and

registration of all marriages

The Ottoman Mecelle (1917)was again thefirst regularlaw making

compulsory.

Registration of marriages is now a compulsory legal formality in countries. Unregistered marriages, however, are not modern Muslim declared legally invalid, although the parties are liable to some statutory penalties.

but thanofficial registration, inEgypt and Iran since 1931and inTunisia since 1957,a marriage can be proved only by an officialcertificate of

In these countries, a marriage may be proved by means

other

registration. Dower:

majority where an amendment has been made according to the Shi'ah law Sunnt law in respect of dower. Un in the application of the classical der theMuslim Family Laws Ordinance of 1961, section 10,where no de

Pakistan is theonly country As alreadymentioned, with a SunnI

MUSLIM FAMILY LAWS 239 or mode of paymentare specifiedin the nikahnamah, the tails about the
marriage payable contract, the entire amount of the dower shall be presumed on demand. to be

Capacity of Women: The classicalMalik! rule of a guardian's rightfor giving even an Sudan andMorocco, with the adult woman is stillobtaining inthe proviso
In Tunisia, is essential for the validity of the contract a MalikI woman can contract her own marriage. In however, contracted by ?hafi4i some countries, like India and Malaya, 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. In Turkey too an adult female can contract marriage of the guardian. without the consent

Polygyny: Mecelle (1917)was thefirst The Ottoman regularlaw where a stipu another wife duringthelifetime the lationprohibiting husbandfromtaking wifewas declaredas valid. of his first Muslim Muslim country following the Today, Tunisia is theonly sense of theword, where polygynyis legally law in the strict prohibited and a punishment is provided for the defaulter.Likewise, 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, Iraq, Pakistan and

of another marriage

as "void".

The Moroccan

Law

of

co-wives",

complaint of the wife. 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. second marriage, 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." 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.

In thefield of maintenance, inmost Muslim countries,it is being of maintenanceof thechildrenis thejoint responsibility emphasized that

240

A.R. NAQVI

of children devolves upon themother. and Turkish6 laws. by theMoroccan* Ill ? Judicial Dissolution:

alone. This rulehas alreadybeen accepted theparentsand not of thefather Muslim countries,suchas Iran and Tunisia where failing in some of the for in thefather(and grandfather, case of Iran) the liability maintenance
The same rule has been followed

Divorce

on minor details.

The rule of judicial dissolution,broadly based on a Malik! doc most Muslim countries, with variations is applicable today in trine, though
Except for pre-marital impotency, 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. But in Pakistan, though The Dissolution of Muslim Marriages Act of 1939 IJanafi followers,
dissolution for fourteen. other causes to demand as well. the right of the woman of

It also recognizes dissolution on marriage other grounds recognized as valid under Muslim law.

Custody ofChildren:
by the classical Muslim

In case of dissolution of a marriage, it is generallyprescribed

law that the children shall be placed

mother over the females until they are married.

of the father,except in Malik!

law which gives such a rightto the

in the custody

marriage,

whether by divorce or on husband's death, the mother over all other relatives, including even the father.7 precedence

So far it is only inTunisia that in the event of dissolutionof a

enjoys

Triple Divorce: in some countries, such as

of divorcegiven in a single session, As regardsthe effect a triple

Iran and Pakistan, the doctrine of Shi'ah

In such cases, a remarriage of the couple is When possible without the intervention of an intermediary husband. the husband shall pay compensation before consummation, pronounced band in the pronouncement. to thewife, but ifpronounced after consummation he shall be liable for the The separation, however, takes place payment of the full dower. through a judge.

divorce isbeing followed. In Egypt, it iscalled it law of treating as a single divorce*if the word falaqhas not been employedby thehus an 'imperfect

MUSLIM FAMILY LAWS241

Irrevocable Divorce:

restriction on the husband's power to terminate themarriage immediately by pronouncing a final and 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. rights of inheri

One of the principalmodern reformsin theMuslim law is the

In Pakistan, under The Muslim Family Laws Ordinance of 1961,* a faldq pronounced "in any form whatsoever" will not be absolute until ninety days after the delivery of the notice, or where the repudiated wife is pregnant, until the delivery of the child, 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". This clearly covers KhuV Thus agreement (i.e., under the classical Muslim law con though stitute a final and irrevocable divorce, shall not be so under the present law. and Mubdrat) which, the spouses' mutual rights of inheritance shall not their separation is declared final by law. terminate until the cases of extra-judicial divorces by mutual

In Egypt, the Sudan, Jordan, Syria, 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. 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.9 tions, Thus, the first two divorces shall be treated as revocable. In Tunisia, however, the Tunisian Law of Personal Status of 1956, (Section 31), has completely abolished the extra-judicial divorce, whether by faldq or mutual consent. Thus, it entirely sweeps away the classical distinction between a revocable and an irrevocable divorce. In all cases, the marriage continues a decree of divorce; *iddah. The to exist, for legal purposes, until the court issues and since the decree is final in all cases, there are no law, 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.

242

A.R. NAQVI IV ? Inheritance

Inheritance One

of a Grandson of the most essential, 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.
predeceased son or daughter. The family laws of Pakistan and Egypt

The Egyptian law, however, adds that the share shall not exceed one-third of the total estate of the deceased grandfather. V ? 1. 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, the same liberal
the Shi'ah law.

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.io towards the doctrines of the Shrah the doctrines of the various as well. 2. Equitable Treatment of Women: countries, the concept of women's dis law. A more

Sometimes,

therefore, a person has been compelled

to

be Muslim adherents the of fore, may better adoptedby the majority sect
A similar liberal attitude towards law seems advisable in Iran schools of SunnI

liberal attitude, there

for qualification holdinga particular giving place in thesocietyisgradually

way

In a number of Muslim

women enjoy franchise, tries and have completefreedom for receiving highereducation. Today, theycan aspire to hold any position in their men, theyshouldpossess countrysubject to the sole conditionthat,like
the necessary qualifications for it.

to a more realistic and progressive approach.

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, where they are working as professors, doctors, bureaucrats,

MUSLIM FAMILY LAWS 243

even judges, particularly They are today less economically dependent are, therefore, more justified in demanding ambassadors and family affairs. to contribute a greater share in the different walks 3. A Registration in the family law courts. on their husbands,* * and an equitable treatment as

more particularlyin the field of honourablemembers of the society, Ifwomen are grantedbetterand equitable rights, will they be able
of life.

and recalls must also Iran, vide. Marriage 4. Polygyny: An 'Ali says

It is suggusted that likeall marriages, registration all divorces of

be made compulsory by Act of Iran, (Section 1). law, as is prevalent in

of familylifeis theabolitionofpolygyny. Ameer Advocating suchreforms, political needs of theearlyperiod of Islam.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, in case of more than should be complete equality between the wives. As matter of feelings of love and affection is clearly impossible, the proviso to the permission transforms it into prohibition.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,

is the second marriage declared void, and therefore subsist after the man has undergone the punishment provided it may for the defaulter. Such restrictions have, thus, proved only deterrent, but they have failed to do away with the evils of polygyny. Therefore, except in most rare and deserving cases, conclusion of a marriage during the subsistence of another must be declared void in all the Muslim countries. 5. Dower:

country (following theMuslim law) where poly All the other Muslim coun gyny is clearly prohibited by law is Tunisia. 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. Nowhere

countries.

The systemof mock dower is still prevalent in some Muslim

It must be legally fobidden, and the dower must be allowed

244 upto the amount

A.R. NAQVI

commensurate with the social status of the spouses.

and instead of the dower a number of is getting weaker and weaker, themselves on behalf women prefer to stipulate the option for divorcing

Inmodern times, emphasison thecondition of mahr (or dower) the

with the hus findcontinuanceofmarital life of thehusband should they

intolerable.^4 of Children: 6. Maintenance

band

In the classical maintenance of

law, a father is alone responsible for the the children. However, where a father is destitute, the Hanafi

mother, if she has the means, becomes responsible for the maintenance of her children, and the sum advanced remains a debt against the father to be recovered when he is in easier circumstances, even though the children the other hand, under the may have a rich paternal grand-father. On law, if the father be poor, the liability for the maintenance of his children rests primarily on the grandfather, if he have means, and not on the mother, even though she be rich. classical Shi'ah already been mentioned. Personal section 47, Status, 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. On the other hand, the Iranian Civil Code, section 1119, 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 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. reforms in this field have

event of the poverty or

This rule has already been accepted parents and not of the father alone. in some of theMuslim countries, as explained above, and must be enforced through legislation in other Muslim countries as well. 7. Maintenance The of the Wife:

of must be thejoint responsibility the Maintenance of thechildren

countries, such as Iran, 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. 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. It would be quite in conformity

MUSLIM FAMILY LAWS 245

by a wife merely on the ground of the husband's failure to support her, financial incapacity when the failure is the result of the husband's no fault of his own, while on the contrary the wife is prosperous through This will also save the family from the enough to support herself. disastrous consequences of separation.

with the principlesof equityand justice to refusethedivorce demanded

8. Maintenance

Husband: of the

jurists, it is only Among the classical Muslim supporting her husband. 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, even if she has not contributed to the causes for the

for isTurkey. The Turkish law1*holds a wife responsible paying for the

maintenance,

enunciated by Ibn Hazm,

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, while to support herself and her children, but also of her husband. 9. Custody The of the Children:

must be the duty of thewife not only supportherselfand thefamily,it

to pay for the maintenance

laws relating to the custody of the children, particularly after the dissolution of the marriage or death of the father, occupy a great im a direct bearing on the determination portance in the society , 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. arbitrary principle of care of themother, and thus depri snatching the child from the affectionate love of its mother, and hand ving the poor child of the natural affection and of his moral, socia1 ing it over to the father, without any consideration and material the Muslim capacity, as is still followed inmost of reason and justice. cannot stand the test of countries,

246

A.R. NAQVI

children until they are married,

The Malik! law entitlingthemother to the custodyof the female

being most reasonable, must better be

Muslim countriesalike. followedby all the

to the classical (and in most cases, even the modern) According Muslim law, 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. This quite unfounded and unnatural.

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, the stranger man not relatedto the infant not be agreeable to her bringing up the childwith due care and would
This latter argument, no doubt, carries some weight, but it also not apply in the present-day changed conditions, where thewomen may in many cases have economic independence, or sometimes make due sti in their marriage contract with the second husband in respect pulations affection.

childrenfromthefirst husband. of their rightto bringup their

her children on contracting a marriage with a stranger, 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, contrary to the father and in the absence of other qualified near female relatives, themother, though married to a stranger, is better qualified for upbringing the child.

be entrusted to the person who shows by nature or by observation and experience, a greater tenderness, love and affection to the child. This is generally the mother, and very rarely the father or paternal grandfather. deciding about the custody of comparatively older children, not falling under the category of infants, the same principle may be followed. in case of children who though not pubert, or of age, are yet However, While discreet enough to discern their interest, the decision may be made court with their consultation and by their choice. by the

must be that thecustody should child, thebasic principle to be followed

As regards the order of preference inmatter of custody of an infant

In case of adult children, where the child is a female, preference should be given to the mother, or mental con except when, formoral she is found unfit for the custody of the child. Where the siderations,

MUSLIM FAMILY LAWS247 child is with male, he may be allowed tomake his own choice and to stay eitherof theparentshe prefersto stay with. The matter of custodyof thechildrenshould betterbe leftto the judicious discretionof competentfamily law courts. Today with the
of education and

advancement of women,

It may prove careless towards his children after marrying another wife. is, therefore, advisable that before issuing a decree of separation, the court of law must ensure a proper arrangement for the protection, maintenance and custody of the children. 10. Blemishes Allowing Dissolution ofMarriage:

mother ratherthan thefather who, as isproved by experience, 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,insanity of the spouses, whether as a sufficient pre-marital or post-marital, must be generally treated dissolution. cause entitling the other party to demand This idea has grounds. already been accepted by the Iranian law*8.

must be allowed to demand dissolutionofmarriage on similar theparties

on the ground of blemishes

in the spouses

is also necessary. Both

Likewise, incurable impotency of the husband, whether pre-marital So or post-marital, must also entitle the wife to demand dissolution. is held as a suf far inmost Muslim countries the pre-marital impotency ficient cause

denied thisright. wife is generally the

most countries, including Pakistan,

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, isnot in somecases after dissolvingthefirst;
for dissolution in for justification of a second marriage,

held as a sufficient cause justifying the wife's demand order to enable her tomarry another husband.

11. Right ofDivorce:

be subjected to more restrictions. The husband must not be allowed to exercise his right without the intervention of the court of law. In every case where either of the parties demands separation, he/she must apply to the court of law, and the court shall make all possible endeavours

will must The freedomofman in divorcingthe wife of his sweet

to

248

A.R. NAQVI

of bringabout a conciliation. If,however,all the efforts thecourt in this

respect prove fruitless, itmay allow Divorce must be the parties to separate.** because as a result of a strictly discouraged, divorce the wife is generally left in penury. Sometimes when she returns to her father's or brother's house, in the absence of any other alternative, she has to put up with all sorts of humiliations and sufferings. 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. cated enough or otherwise able to earn her livelihood.

in most deplorableconditionifshe isdivorced inher old isparticularly the

Generally, it is being stressedby theMuslim intellectualsthat thewifemust be given an equal rightof divorce. It is also most advis to must be referred specialcourts dealingwith able thatall family disputes of competent affairs thefamily judgesof both sexes. This will consisting
make proper and expeditious settlement of family disputes possible.

12. 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.

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. theamount of thedower paid by thehusband to the
13. Missing Husband: whether any ransom is at all required to be paid by the wife, and if so, a reasonable amount must be fixed by the court on the merits of the case,

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, 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, except in a few cases.2 i

It is not undertsood as be required to wait for the return of the spouse. classical law has not taken account of the woman's to why the needs, to a report, Caliph both moral and material. 'Umar, after According

must be prescribedas to theperiod forwhich a wife (or reasonable limit where polygamyis prohibited), thehusband, in case of thecountries may

In view of the present fast and quick communication

media,

a more

MUSLIM FAMILY LAWS249

due enquiries from her daughter as to the maximum period for which a woman may have patience, ordered that no Muslim soldier should be Once compelled to be away from his wife for more than four months.**

this report is accepted as true, it does not look proper to ask a wife to This wait for more than what is recognized as the limit of her patience. climate, geographical, racial, age and other individual conditions. Thus

limit women, according to the differenceof may vary with different

in of the limit may be leftto be determined consideration the condition

of the individual cases.

and circumstances

missing

it entirely omits the case of a missing wife, and no husband, prohibition is imposed on the husband's taking another wife, though in case a wife reappears after the husband has taken another wife, it may entail inheritance and other relevant matters.

to while the It is also interesting note that Muslim law treatsof a

as some difficulties arisingout of theprohibition to the numberofwives,

where the law*3 deals with the Muslim country Turkey is theonly cases of the missinghusband as well as themissing wife. The Turkish law,however,does not provide any particular limit of period waiting
and leaves it to the sole discretion of the court. It is necessary for all theMuslim tion for removing this lacuna. 14. Inheritance of Wife and Grandson: Under the classical Muslim law if the husband is the sole surviving estate of his wife, but the same countries to find some proper solu

heir, he is allowed to inherit the whole principle is not observed where the wife is the sole surviving heir of her husband.* 4 This requires a special consideration of the Muslim jurists for finding an equitable solution of the problem. As regards the inheritance of a grandson (or grand-daughter) by it is a general princi a predeceased son or daughter, already mentioned, law of inheritance, Shi'ah and SunnI both, that only those ple of Muslim relatives who survive the propositus are allowed to inherit. But the doc by Pakistan and Egypt, already mentioned, though not sup ported by any classical authority is, nevertheless, in accord with the prin trine adopted

father, it will mean

ciples of equityand justice. If a son (or daughter)of a predeceased son from (or her) deceased grand his (or daughter) isdeprivedof inheritance
a double misfortune, for the poor fellow has already

250

A.R. NAQVI

or of been deprivedof the loveandmaterial protection his (or her) father of would onlyadd to his and therefore deprivation inheritance the mother, (or her)miseries.
VI ? Conclusion

Muslim in so The reforms fareffected thefieldof familylaws in the Muslim law), though in some those followingthe countries(particularly
cases quite progressive, are not quite sufficient, and a number of other Some more effective measures reforms seem imperative and expedient.

almost equal rights withmen in thefield ofmarriage, divorce, custody and other family affairs. of children
Moreover, some effective measures lation for ensuring proper arrangement long way through legis of custody, protection and main and even economic must be adopted

seem necessary forminimizing the number of divorces and doing away with the consequent evils, and raising the status of women by granting them

tenanceof thechildren afterthe separationof theparents. This will go a Muslim society evilswhich likea cankerare eating into thevitals of the
today.
Notes.

in eliminating a number of the social, moral

1. SeeMuslim Family Laws Ordinance, 1961, section7 (5). 2. Ibid; section4.

of 3. For instance, the condition of registration all marriages imposedby the Iranian with thecondition of witnessesunder theSunni law. law is,at least in spirit,in line 4. The most important legislationof recent timeswas theOttoman Law of Family Rights (Mecelle) promulgated in 1917, which, though no longer obtains in the of been superseded by country, itsorigin, is still inLebanon and has only recently evenmore progressivecodes inSyria and Jordan. TheMecelle was compiled under the chairmanship of Cevdet Pasha. The work of theCommittee codifying the Mecelle was stopped abruptlyby Sultan Abdel Hamid II (1768-1908). This book Middle East. It was, however,abolished is still in force in several countriesof the Shari'ah courts in 1924. inTurkey after theabolition of the Caliphate and the Moroccan Law ofPersonal Status, section 129. 5. See the maintenance 6. The Turkish law holds both thehusband and wife responsible for the and education of theirchildrenequally. (Turkish Civil Code, section 151). 7. See theTunisian Code ofPersonal Status, section57.

8. See the Muslim Family Laws Ordinance, 1961, section 7.

MUSLIM FAMILY LAWS251

9. See theIranianCivil Code, section 1145. 10. For instance,thereis thecase of the late ImtiySz 'AirTaj. He had only one daughter and no male issues. In order to get thebenefitof the Shi'ah doctrineof succession whole share inabsence of a male issue,he had to which allows thedaughter the make a public announcementof his renunciationof Sunni sect and adherence to Shi'ah sect. Imtiyaz 'All Taj was a famous Urdu writer and dramatistwho was killed recently in Lahore by unknown persons. man's superiority overwoman enumerated in the 11. One of the twocauses for Qur'an man's spendinghismoney on woman, which does not apply in (IV: 34) is the many men have naturally less claim to superiority overwomen in the cases, and therefore changed conditions of thepresent-day society. The verseof the Qur'an referredtoabove isas follows:

(Men are in charge ofwomen, because Allah hath made theone of them to excel theother, and because theyspend of theirproperty(for the support of women). (IV: 34).
12. Qur'an says:

(And ifye fear thatye will not deal fairlyby the orphans,marry of the women, who seem good to you, two or three or four; and ifye fear thatye cannot do justice (to so many) then one (only) or (the captives) that your righthands possess. Thus it ismore likely thatye will not do injustice). (IV: 3) The Spirit of Islam, (London, UniversityPaper back, 1965; reprint 13. See Ameer *Ali, 1922); p. 229. 14. This stipulation permittedby the Marriage Act of Iran, section 4, is a general among the educated women of that country, 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, to thewife or the husband's right of or divorce curtailed in the Nos. 18 Nikdfrnamah, the marriage contract,(vide items of and 19 respectively the prescribed formofNikahnamah). 15. Ibn 9azm says:

"If thehusband isunable tomaintain himself,and his wife iswealthy, she shall be liable forhismaintenance, 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

252

A.R. NAQVI

manner is upon the mothers in a seemly (The duty of feedingand clothingnursing fatherof the child. No one should be charged beyond his capacity. A mother man to whom the because of her child,nor should the should not bemade to suffer to suffer) because of his child. And on the (father's)heir is child isborn (hemade on incumbent the likeof that(whichwas incumbent thefather). Now, 'All says thata wife is (herhusband's) heir. Therefore, she is liable to supporther husband, according to the textualauthorityof theQur'an". See Muballa (Cairo, 1sted., 1152A.H.), Yol. X, p. 92, ProblemNo. 1930. 16. See TurkishCivil Code, section 144. 17. 9, 12, 13, 16 and 18 of theAct. 18. See theIranianCivil Code, section 1122. Muslim countries,including 19. This viewhas alreadybeen adopted ina number of Iran, Pakistan and Tunisia. 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; except may not be able tokeep the limits (imposed by) Allah.(II: 229) This clearly shows that the amount of ransom, payable by thewife to thehusband, should not exceed thatof thedower paid to her by thehusband.

21 The exceptionsare thecases of armed forcepersonnel or thosewhose shiphas been wrecked during thevoyage. (See IranianCivil Code, sections 1020 and 1021). 22. 23. See 'All al-Muttaqi, Kanz al-'Ummal (HyderabadDeccan) Vol. viii, p. 308. See TurkishCivil Code, section94

24* The Fatimid juristQa<Ji Nu'man reports two decisions from 'All b. Abi T&lib, where the latterdecided to give thewhole propertyto the survivingspouse,when
no aw. other heir existed. Vide Da'a'im

If thisrule is accepted (as reliable, it must prevail among all the schools ofMuslim

al-Islam,

Cairo,

Vol.

II, Art.

1390, p.

391).