FIRST STEPS
IN
MUSLIM JURISPRUDENCE
CONSISTING OF EXCERPTS FROM
BAKURAT-AL-SA'D
OF
IBN ABU ZAYD
WITH
ARABIC TEXT, ENGLISH TRANSLATION, NOTES, AND A SHORT
HISTORICAL AND BIOGRAPHICAL INTRODUCTION
BY
ALEXANDER DAVID RUSSELL, M.A., LL.B.,
Chief Magistrate of the Colony of the Gambia,
AND
ABDULLAH AL-MA'HUN SUHRAWARDY, M.A., M.R.A.S.,
Barrister-at-Law.
LONDON:
LUZAC & Co.
46, Great Russell Street.
1906.
PRINTED BY E. J. BRILL, LEYDEN (HOLLAND).
RESPECTFULLY DEDICATED
TO
SIR GEORGE CHARDIN DENTON, K.C. M.G.,
GOVERNOR AND COMMANDER-IN-CHIEF OP THE
COLONY OP THE GAMBIA,
IN RECOGNITION OP HIS EFFORTS FOR THE IMPROVEMENT
OP THE CONDITION OP HlS MAJESTY'S MUSLIM
SUBJECTS ON THE WEST COAST OP AFRICA.
PKEFACE.
In offering this little work to the public, it is
necessary to say a word or two with regard to its
purpose and the circumstances to which its appearance
is due. In the first place it is hoped that it may be
of general use to English students commencing the
serious study of Arabic, with a view whether to the
Indian or to the Egyptian service: its immediate
raison d'etre, however, is of a more special nature.
The recognition of Muslim law, and especially such
portions of it as relate to family rights, (marriage,
succession, wills, gifts etc.) in our West African Colo-
nies and Protectorates, has created a need for some
handbook in which the principles (at least) of that
law might be studied by commissioners and other
legal officers on whom mainly falls the responsibility
for its due administration. Unfortunately, at the
present moment there is no work in the English
language quite suitable for this purpose. Of general
introductions to the study of Muslim law, it is true,
two excellent examples are afforded in Sir E. K.
Wilson's "Anglo-Muhammadan Law" and Mr. Ameer
Ali's "Student's Handbook of Mahommedan Law" : but
both are written with a view particularly to Indian
judicial arrangements and from a Hanafl standpoint.
On the West African Coast, (as also over most of the
VIII PREFACE.
north-west of the continent) on the other hand, the
rite of Malik holds exclusive, or all but exclusive sway ;
and what, therefore, is required is a manual setting
forth concisely the doctrines of that school. As a
stop-gap, until some more complete work can make its
appearance, it is hoped that these excerpts from Ibn Abu
Zayd's treatise, together with the simple notes which
we have subjoined, may prove acceptable to those for
whom they are specially intended.
The Arabic text has been printed along with the
translation for two reasons, (a) For the lawyer or
administrator who is to take a useful part in the
practical application of Muslim law, it is of the greatest
importance, indeed one may almost say indispensable,
to have some acquaintance with the original. To deal
with questions involving the status and most important
rights of one's fellow-subjects, relying solely upon
translations and manuals in some European tongue, is
to "swim on bladders" in deep water: the fact must
be recognised at the outset, that here is no shallow
study to be taken up and mastered in a few weeks,
but a vast science in which the genius of the same
people which gave arithmetic, algebra, trigonometry,
astronomy, optics, chemistry and medicine to the
western world, and generally stood at the cradle of
modern science, has exhibited itself in all its power
and exactitude. To acquire, therefore, the technology
of the subject is the first and indispensable step towards
sound knowledge : and for the encouragement of the
beginner it may be added that, despite the marvel-
lous and well-nigh inexhaustible richness of the Arabic
PREFACE. IX
language in the domain of belles lettres, the conven-
tional language of Muslim law is by no means so
copious or varied as to defy any really earnest student ;
while the justness and preciseness of its employment
will even at an early stage rouse his appreciation.
(6) The second reason is almost the converse of the
first. It is the authors' earnest hope that this little
work, besides being useful for English readers in
approaching the study of Arabic, may turn out to
be serviceable also in some instances to Arabic scholars,
both in West Africa and in Egypt, in acquiring a
better knowledge of the English language. We have
found ourselves in the course of considerable practical
experience among natives, that a man may have a good
knowledge of the one tongue, and considerable famil-
iarity with the colloquial employment of the other,
and yet be quite incapable of accurately rendering even
a simple legal passage from, the latter into the former,
still less from the former into the latter. There exists
among the un-Europeanised natives of the West Coast
of Africa at the present day an amount of Arabic or
semi-Arabic culture which is. only now coming to be
realised: among those who are Europeanised, on the
other hand, western education has made great strides,
and is making greater every day. The regrettable
point is that few, if any, persons can be found properly
equipped with both; while the vernacular speech of
the country or tribe is useless, from its lack of tech-
nical development, for the conveyance of any beyond
simple ideas. The situation is a curious one two great
languages, each forming a lingua franca for indigenous
X PREFACE.
tribes as little known to the average inhabitant of
the one country as they were to the Prophet of the
other; and between the two, so far as law or grammar
or any scientific subject is concerned, no communication,
no bridge of any kind.
The "First-fruits" of Ibn Aba Zayd is in itself too
small a bridge to span so wide a gulf; but if it can
contribute in any way towards laying the foundations,
its publication will not have been in vain. Already,
in its original form, in the hands of great numbers
of natives on the Coast, it ought in any case to
receive some measure of welcome, such as is due to
an old friend though dressed in a foreign garb.
In the notes we have occasionally made use of the
excellent commentaries of al-Sharnubl, Abu-1-Hasan
and al- c Adawi. But in general, keeping in view the
educational purpose for which this edition is intended,
and seeking to avoid adding anything which would
complicate the subject by the importation of new matter
not essential to the comprehension of the text, we
have inserted instead short explanations of our own as
being more in accordance with this purpose. Some
apology may seem due for the numerous appendices
relating to Succession : but those who have themselves
striven to master, still more to exhibit in a clear light
for the guidance of others, the intricacies of that most
troublesome branch of the law, will appreciate the
impossibility of rendering intelligible even the general
outlines of the subject as given by our author without
running to considerable length, We have, it may be
said, done our utmost to be concise and at the same
PREFACE XI
time simple : among other expedients to that end,
making extensive use of cross-references within brackets
so as to avoid digression and repetition.
We crave the indulgence of critics for mistakes,
whether of omission or commission, which may be
discovered in the work. Official and other duties,
and the immense amount of labour involved in the
preparation of a larger and more important work,
have resulted in scant justice being done to what is
truly a par ergon. But the object in view being, not
to offer to the world an exact compendium of the
law, but merely to smooth the path of the student
at the outset, it is hoped that what is good in the
book may outweigh the defects and render it acceptable.
We have taken certain liberties with the text,
which critics, it is hoped, may find excusable in view
of the practical purposes aimed at in the preparation
of this edition. We have, to begin with, selected only
such portions of the original work as deal with those
branches of the law which already have received, or
it is believed are likely to receive, express legislative
recognition in our West African Colonies, viz: civil
status, marriage, succession, gifts, wills, and guardian-
ship. We have omitted all references to the institution
of slavery as being without general utility at the
present day. We have divided the text up into three
hundred and six separate rules, which we have num-
bered in Arabic characters, indicating the English
translation of each by the corresponding European
number : this arrangement, to which the concise and
disconnected style of Ibn Abu Zayd's dicta naturally
XII PREFACE.
lends itself, will, it is hoped, render matters clearer
for the beginner, and also facilitate reference. The
system of transliteration adopted is, with a few excep-
tions, that recommended by the Geneva Congress of
Orientalists. In the translation of the rules, we have
rendered the Arabic technical terms by English equi-
valents, sanctioned in general by the usage either (a)
of Anglo-Indian writers, such as Hamilton, Ameer Ali,
Wilson, etc., or (b) of Perron, Seiguette, Zeys, and
other French authorities; selecting in every case such
expressions as seemed best fitted to convey to the
beginner a correct understanding of the principle in-
volved. In the notes, on the other hand, we have in
a good many instances employed the original terms
(wall, wasl, c iddah, etc.,) as being shorter and
more precise.
In conclusion we desire to express our indebtedness
to Dr. Blyden of Sierra Leone for having brought to
our notice the need existing for an English translation
of the Kisalah and the kind encouragement which
he has given us in the enterprise. We can only regret
that his multifarious other labours should have prevented
this distinguished Orientalist from himself undertaking
the work.
16th February, 1906.
INTRODUCTION.
GENERAL CHARACTERISTICS OF MUSLIM JURISPRUDENCE.
If there is one quality distinguishing above all
others the legislative work of the Prophet of Islam,
it is the quality of moderation. "Truth lies in the
middle," Igla^J jj-*$\ j+p> : ! in his unswerving ad-
herence to this maxim lies the proof of his mission as
a practical guide for human conduct, and the expla-
nation of the permanence, during upwards of thirteen
centuries enjoyed by the religious, and jural institutions
which he framed. While other systems of jurisprudence
have grown up, and run their course and passed away
or at the best have altered their whole character
in such a manner that only the student of antiquities
can identify in the living form the traces of the past
Muslim law remains at the present for all practical
purposes the same as it was at the commencement.
Within the sphere of family relations, (marriage,
succession, wills, gifts etc.) more especially, it has
undergone hardly any modification since the days of
the author (born 312, died 389 A.H.) whose little
work is here presented to the public. How is this
unexampled continuance, this marvellous vitality, to
be explained? The secret lies (1) in the moderation
i Cf. K.ur-an, 2, 137: "Thus have We made you a middle
nation etc." : &f lL &
XIV INTRODUCTION,
already referred to as exhibited by the great founder;
(2) in the manner in which the spirit was caught by
his immediate followers and carried by them into
every branch and detail of the great legal systems
which their learning and enthusiasm built up from
the foundations laid by the master.
It will stand the student in good stead if he will
bear this principle in mind as he advances into what
might otherwise seem the needless complications of
Muslim jurisprudence. "Truth lies in the middle" ;
but the difficulty is to find the middle, or, having
found, to follow it through every branch and detail
of social relations.
EXAMPLES OF THE MIDDLE COUKSE CHOSEN BY THE PROPHET
IN LEGISLATIVE MATTERS.
SLAVERY.
At the time when the Great Arabian lived, the
institution of slavery existed everywhere throughout
the world. In Arabia it prevailed extensively. That
Muhammad wished to discourage slavery is certain 1 :
notwithstanding this, we know him to have extended
to it an implied and reluctant recognition. Why?
Because slavery had a good side as well as a bad:
the good side was that it mitigated the atrocities of
...
"Verily my friend Gabriel continued to enjoin on me kind-
TU-SS to slaves until I thought that people should never be
takon as slavos or servants". Hadlth cf. Kur-an, OO, 14.
INTRODUCTION. XV
war. Tribal warfare went on throughout Arabia: war
on a wider scale was about to commence with the
outside world: in the former, in the latter, captives
were or would be spared with a view to disposal in
the slave-markets. To prohibit slavery was to decree
the slaughter of all captives : this the Prophet saw,
and for this reason, we may believe, more than for
any other, he chose a middle course, viz: while toler-
ating the relation of master to slave, to strictly
forbid any abuse of power by the former, and by the
recognition of numerous methods by which slaves
might, and occasions upon which they ought to be
liberated, to promote the speedy enfranchisement of
the whole population.
CONDITION OP WOMEN.
Arab women in the time of Muhammad were like
chattels in the hand of their fathers, or of their hus-
bands. In a not very remote past, however, it would
appear, matters had been otherwise: descent was traced,
not through males, but through females, and children
belonged, not to the father's, but to the mother's tribe ;
with the result that women frequently acquired great
wealth and influence, and enjoyed what according to
all civilised ideas of morality must be considered an
excessive freedom with regard to their relations with
men. The Prophet took the middle course: he upheld
the authority of the husband over the wife, as the
surest safeguard of the honour and happiness of both ;
but laid down strict rules with regard to the manner
in which wives were to be treated; not merely with
XVI INTRODUCTION.
regard to the necessities of life, lodging, food, clothing
etc., but with regard to the husbands' mode of con-
versing with them, the companionship which it was
his duty to supply, etc., etc.
SUCCESSION.
In Muhammad's time, when a man died, his whole
belongings passed to his nearest agnate (or male
relative through males), who was of age and capable
of bearing arms; e.g. his sons or son's son, his father
or his brother etc. Maternal relations had no right to
any share, while step-mothers were in a still worse
position, inasmuch as they passed absolutely to the
heir, who might retain them as wives or dispose of
them by sale. This was the working-out of the system
of descent through males. On the other hand, under
the older system by which children were reckoned as
of the mother's tribe, property would devolve from a
man, not to his son, but to his sister's son, and the
maternal bond was all-important. A remembrance at
least of this earlier system lingered in the sympathies
of the people; and the close and warm relations
commonly existing between a man or a woman and
his or her mother's relatives, came occasionally to
disturb the natural course of devolution. Here, again,
the course chosen by the Prophet was a middle one:
he retained the more modern principle as it then
was in Arabia of agnatic succession, but accorded
recognition to the natural instincts of non-agnatic kin-
ship, by assigning to the mother, (or failing her to
INTRODUCTION. XVII
the maternal grandmother etc., a fixed share in the
succession of the child), and granting her in case
of repudiation the custody of her children till the age
of puberty. Daughters also were admitted to share
the succession along with sons, and sisters along with
brothers, receiving as their share half that accorded
to their brothers.
SCHOOLS OP MUSLIM JURISPRUDENCE.
A schism, dating back to the martyrdom of the
great Caliph, c All, has divided the Muslim world into
two great sects, known as: (1) Sunnls; (2) Shl c ahs.
It is with the former only that we have any concern
in this little work; and the first point to note about
them is that they are not themselves at one on all
points, but on the contrary form no less than four
-distinct schools or rites, Chronologically, they may
be enumerated thus: (a) Hanafls, or followers of
Abu Hanifah, born at Kufah 80 A.H., who, originally
a Shl c ah, seceded from that party, and becoming a
Sunni distinguished himself equally by his subtlety
and insight, and by the lengths to which he carried the
process of analogical deduction dj^). (b) Malikis,
or followers of Malik b. Anas, a judge in Medina,
bom 94, died 179 A.H., (795 A.D.) celebrated for the
boldness and range of his decisions, but an upholder
of tradition rather than of analogy, and author in the
Muwatta' of the earliest considerable collection of
hadith extant, (c) Shafi c is, or followers of Muham-
mad b. Idrls al-Shafi c l, born at Grhazzah in Syria, 150
2
XVIII INTRODUCTION.
A.H. (819 A.D.)j a strong traditionist, but relying
also on analogy and agreement among the early jurists,
(d) Hanballs, or followers of Ahmad b. Hanbal, born
at Baghdad 164 A.H., died there 241 A.H. (855 AD.),
a traditionist and author of a musnad or collection
of authenticated reports of the sayings of the Prophet-
MALIK! BITE.
The Maliki rite or school prevails in Upper Egypt,
and over great part of the north and west of Africa.
Of all the four schools it may perhaps claim the
purest and most direct descent from the great lawgiver
of Islam, free equally from the speculative tendencies
which characterised the c lrak jurists, and from the-
reactionary influences which had come to make them-
selves felt by the time that the two later schools
came into existence. Somewhat rigid and formal perhaps
on certain points as compared with the school of Abu
Hanlfah, it has on the other hand the immense recom-
mendation of having been from the outset a practical
and living body of doctrine, growing up in the earliest
home of the faith l and interpreted by real judges
each of whom would in his time be the repository of
of all that was best in the traditional practice and
doctrine of the City. Malik himself must have been
in many ways a remarkable man: of good descent,
he seems to have had every opportunity of acquiring
sound knowledge; and of his many masters, he is
1 Mi'dimi, "The City of the Prophet"
INTRODUCTION. XIX.
reported to have said that there were few who did not
subsequently come to consult him on some point of
law. He would seem by one account to have been
publicly proclaimed as the only mufti or consulting
lawyer to whom it was lawful to go for advice. He
was careful and precise in repeating traditions; and
would never ride on horseback in Medina, out of
respect for the city in which the body of the Prophet
lay interred. An anecdote related by al-Shafi c l with
reference to him is as follows : "Muhammad b. al-Hasan
said to me: 'Which of the two is the more learned,
our master or yours ?' meaning Abu Hanlfah and Malik.
'Do you wish,' I said, 'that I should answer with
impartiality ?' He replied that he did, and I said :
'Then I ask you before God, which of the two is the
more learned in the Kur-an; our master or yours?'
'Yours, to a certainty,' he said. 'I again ask you
seriously, which of the two is the more learned in
the Sunnah; our master or yours?' 'Yours, to a cer-
tainty,' he replied. 'I now shall ask you,' said I,
'which of the two is the best acquainted with the
sayings pronounced by the companions of God's apostle;
our master or yours?' 'Why, yours, to a certainty,'
was the answer. 'Then,' said I, 'there only remain the
analogical deductions (<j*Lo) ; and if they be not drawn
from the three sources we have just mentioned, from
whence can they be drawn'?" The great Imam's lack
of subserviency and rigorous fidelity to principle seem
to have called down upon him the wrath of the
'Abbasid dynasty: he was accused of declaring that
an oath of allegiance taken to them was not binding,
XX INTRODUCTION.
and besides receiving a severe flogging was tortured
by having his arm drawn out till the shoulder became
dislocated. This treatment, however, only raised him
still higher in public esteem; and he lived to a very
advanced age, as much revered for his piety as hon-
oured for his learning *.
IBN ABU ZAYD.
This jurist, whose full name is Abu Muhammad
b. Abu Zayd 2 , was born in Kairawan 312 A.H. and
died 389 A.H. He was surnamed "the little Malik"
^oualf tiUU; according to one statement because he
received the law from the founder of the rite by no
more than two transmissions, viz., through two other
great jurists, Ibn al-Kasim and Sahnun; but more
probably on account of his learning and force of
character. His little treatise on the law has for its
full title the quaint description, Bakurat-al-Sa c d, "First-
fruits of Happiness" : it is, however, commonly known
as the Risalah (i.e. treatise) of Abu Zayd. It is said
to have been the first Mukhtasar or summary of the
law composed in the school of Malik. The style is
elegant and simple, copious use being made of ex-
pressions and passages occurring in the traditional
utterances of the Prophet as contained in the M u w a 1 1 a',
and other dicta belonging to the early period of the
1 Further particulars concerning Malik will be found in
Baron Do Shine's translation of Ibn Khallikan, vol. II, p.
545 seq.
2 Vide Ilaj.ji Khalfa, al-Makkari, Vol. I, 553, and the Kitab-
-al-Dlbai-al-Muzahhab of Burhan-al-Dln b. C A1I.
INTRODUCTION. XXI
law. The student who masters the concise rules here
laid down, will, on his further advance into the
intricacies of Arab jurisprudence, find that in each of
them he possesses the key to some great controversy
which has been waged among the jurists. To those
on the other hand who have toiled through the endless
pages of the great commentators, and striven to grasp
the truth where it lies hid amid the prevailing tech-
nicality and formalism, the simple maxims here con-
tained may perhaps be welcome also, as a relaxation
or a summary.
J-JCJf
^UJJt,
j "1 Jjo ^ 3 .!
1. The enumeration of the constituents of marriage given
by Khalll and other jurists is: 1) a wall to represent the
woman; 2) a dower for her benefit; 3) two spouses, both
free from any legal impediment ; 4) a formula of giving and
accepting in marriage. Abu Zayd passes the third over, pro-
bably as being a matter of course : his omission of the for-
mula, however, may be intentional, i. e. being based on the
view that no particular form of words is necessary to consti-
tute a marriage. As to his mention of witnesses, see below,
rule 2, note.
2. The author refers to the duty of the walls with regard
to o'uxii i. e. specially calling in suitable persons to take
notice of the marriage, so as to be able to give testimony at
CHAPTER I.
MARRIAGE, DIVORCE, RETURN, INJURIOUS ASSIMILA-
TION, VOWS OF CONTINENCE, ACTIONS OF IMPRE-
CATION, RELEASE AND FOSTERAGE.
CONSTITUENTS OP MARRIAGE.
1. There can be no marriage, without: (a) a matri-
monial guardian; (b) a dower; (c) two irreproachable
witnesses.
2. If witnesses are not called to the contract, con-
summation should not take place till two witnesses
have been called.
DOWER.
3. The minimum dower is a quarter of a dinar.
any time when required. An omission in this respect, how-
ever, will not be fatal to a marriage duly consummated,
provided that in point of fact two suitable witnesses can be
found who, though not specially called, were present at the
marriage. This is HoLc; testimony, as distinguished from thn
explained above. "The validity depends on testimony
(oUxo) ? not on the point of witness being called on to take
notice ^i." Al- c Adawl.
3. Or three dirhams equivalent to about eighteenpence.
By custom, however, a substantial dower (for example of
ten pounds or upwards) is enforced in most Muslim countries
at the present day.
.AC 3 v^j v^y- 3jj 3
5. Compare, however, with regard to a w a si's powers, the
more explicit statement made in rule 14.
7. A thayyib means a woman who has in fact lost her
virginity lawfully in wedlock; or who is by a conclusive
presumption of the law held to have done so, on the ground
that she has resided in her husband's house twelve months,
she being then above puberty. Defloration by illicit relations
will not render a woman thayyib.
9b. Commentators are not agreed as to the meaning of
t.
^ijf ^5*3. According to al- G Adaw! it means one possessing
the qualifications requisite for wallship.
BIGHT OP CONSTRAINT.
4. A father may give his virgin daughter in mar-
riage without her consent, even if she has attained
puberty; but if he pleases, he may consult her.
5. Persons other than the father, (such as a testa-
mentary guardian etc.), may not give a virgin in mar-
riage until she attains puberty and gives her consent.
6. A virgin's consent is silence.
7. Neither the father or any other can marry a
woman who is not a virgin (thayyib) without her
consent.
8. A woman (thayyib) must give her consent by
speech.
9. A woman cannot marry without the consent (a)
of her matrimonial guardian; or (b) responsible mem-
ber of her family, like a man of her tribe; or (c) of
the governing power.
10. There is difference of opinion whether a mean
woman may authorise a stranger to act as her matri-
monial guardian.
9c. The Cadi, as representing the governing power, may
sanction marriages: (1) where it is necessary to marry an
orphan between ten and fifteen years of age, in order to secure
her honour, property etc. (2) where a woman has no special
wall to represent her; (3) where her special wall is in n
distant country and has settled there; (4) where a father
maliciously refuses to marry his daughter, etc.
10. A mean woman means one who is not much sought
after, e.g. being of humble birth, poor, a freedwoman, etc. A
stranger may, when authorised by her, act as her w ;i 1 1
even though she has a special wall; but not where that
special wall is mujbir, i.e. is a father or was! entitled to
employ constraint.
JB
1
. If
11. More fully detailed, the order of priority is as follows:
1st, the woman's own son, if she has one; 2nd, her father;
3rd, her brother: 4th, her brother's son; 5th, her father's
father; 6th, her father's brother; 7th, the son of this last
etc. Brothers, nephews, uncles, etc. of the full blood are
preferred over relatives of the half blood standing in the same
degree. Where the woman is herself under the guardianship
of her father, the latter will exclude her son, in lieu of being
excluded by him. - - The order of affinity among heirs is
somewhat different, the grandfather and brother being grouped
together as forming the third class of agnates: see below,
rule 294299 and Appendix 0.
12. The reference is to agnates more remote in rank: for
example, the case of a woman being married by an uncle
instead of a brother. Such a marriage is not lawful to begin
with ; but if the bridegroom be a suitable match for the
woman it will stand: otherwise the special wall may annul
the marriage.
13. The meaning is that the was I may employ constraint
when he has been so authorised by the father, and the match
is an advantageous one for the boy.
14. The was I can only exercise constraint over his female
11. With regard to precedence among matrimonial
guardians, a son comes before a father; and a father
before a brother; and generally a nearer agnate before
one more remote.
12. But if a more remote agnate give the woman
in marriage, the marriage will stand.
13. A testamentary guardian may give in marriage
any boy who is under his guardianship.
14. He cannot marry a girl under puberty, unless
where the father instructs him with regard to her
marriage.
15. Maternal relations are not to be regarded as
matrimonial guardians, but only relations through males.
COMPETITION AMONG SUITORS.
16. A man shall not demand in marriage a woman
previously sought by another; (just as he may not
outbid the bid offered by another).
ward when the father has given him instructions to that
effect, or has authorised him to marry her, or expressly made
his walayah to extend over the person of the ward, or has
designated the husband. Otherwise he must wait till the
ward attains puberty and must then obtain her consent to
the marriage.
15. Maternal relations admitted to the position of heirs,
(e.g. brothers uterine), are excluded from the walSyah,
equally with those who receive no share in the inheritance,
(e. g. maternal uncles).
16. His doing so is forbidden (*L>), The second marriage
will fall to be annulled before consummation, by repudiation,
without dower, even though the first suitor consents to waive
his claim. The prohibition, however will not arise where the
first suitor is a man of immoral character. - - The latter
part of the text w just as he may not etc." is also a traditional
utterance of the Prophet; the rule represents its application
to the case of marriage.
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17. On this point the jurists differ; but the statement of
Millik in the Muwatta' is in favour of the view stated here.
18. Suppose, for example, that one man says to another : "Give
me your daughter in marriage without a dower, and I will
give you my daughter without dower" : this would be a
typical instance of a marriage of privation. The result, were
such a form of marriage allowed, would be to reverse the
principle that dower is absolutely essential to the consti-
tution of a marriage: see below, rule 19 and note.
19. By a marriage without a dower is meant a marriage
in which the parties come to an understanding that no dower
shall be paid. It will fall to be annulled without dower on
discovery before consummation; but after consummation will
be upheld with the customary dower. Cf. rule 24 and note.
'20. It is of the essence of marriage that a life-long union
should be intended : where therefore both parties agree that
9
17. This applies where the first suitor's demand has
been favourably received, and the parties have come
to terms.
ILLEGAL MARRIAGES.
18. The law forbids (1) a marriage of privation;
this occurs where one bride's person is made another
bride's dower:
19. (2) a marriage without dower:
20. (3) an usufructuary marriage, i. e. to endure
till a certain date:
21. (4) a marriage during the woman's retreat:
22. (5) anything which involves risk in the contract
or in the dower:
23. (6) a marriage with a dower consisting of
anything the sale of which- would be unlawful.
24. A marriage invalid by reason of the dower
falls to be annulled before consummation; after con-
summation, it will stand and the wife will be entitled
to the customary dower.
it shall endure only for a certain period whether short or
long, the marriage is invalid. The fact that the husband may
in his own mind have intended to terminate it after a time,
will not render the marriage invalid, so long as he has not
communicated this intention to the wife.
21. The objection to marriage during c iddah is the risk
of commixtio sanguinis: where intercourse has taken place
the parties will be for ever debarred from marrying one
another. Cf. rule 57 and note.
22. For example, marriage at the option of one of the
spouses, or of some third party; or subject to a condition
that, if the dower is not paid by a certain date, the marriage
shall be void ; or of a dower consisting of a runaway camel.
23. Such as things sacrimonially impure, e. g. pork, wine etc.
24. Customary dower is such a dower as would normally
be given for a bride such as the one in question, n-iranl
being had to her rank, wealth, beauty, age, virginity, widow-
hood etc. Cf. rule 19 and note.
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25. Examples of marriage invalid in this manner are (a)
a marriage contracted by a woman without a wall; (b)
marriage during c iddah; (c) a marriage while one of the
parties was on pilgrimage ; (d) a marriage for a period. No
dower will be payable on annulment before consummation^
!2G. Invalid marriages are of two kinds: (a) those which
are universally regarded as invalid ; (b) those which some jurists
uphold as valid. Where there is a consensus of opinion among
the jurists as to its invalidity, the husband on consummation
will be debarred from marrying any of the ascendants or
descendants of the wife; the wife also will be debarred from
marrying any of the ascendants or descendants of the husband;
but if there is no bin a 3 , there is no prohibition. On the other
hand, if them is disagreement among the jurists as to whether
such a marriage be invalid or not, the contract in itself will
raise a prohibition against marriage between the husband
and his wife's mother; but a similar prohibition against
marriage with her daughters will arise only on consummation.
11
25. A marriage invalid on account of some flaw-
in the contract, is to be annulled even after consum-
mation: and the wife will be entitled to the dower
stipulated.
26. A prohibition against marriage within the for-
bidden degrees will be established thereby, just as by
a valid marriage.
27. But a marriage of this nature will not suffice
to legalise for her first husband a woman trebly
divorced ;
28. Nor will it render lawful the co-habitation of
the spouses.
FORBIDDEN DEGREES.
29. God forbids marriage (a) with seven classes of
females on the ground of consanguinity, (b) with seven
on the grounds of fosterage and affinity.
30. It is laid down in the Kur-an "Forbidden
for you are your mothers, daughters, sisters, maternal
aunts, paternal aunts, brother's daughters, sister's
daughters" : these are prohibited on the ground of
consanguinity.
27. To check capricious repudiation the Prophet made it
illegal for a man to remarry a wife whom he had repudiated,
until after she had contracted and consummated a new
marriage and been divorced by the new husband. As mention. M|
here in the rule, the second marriage must be a valid one,
otherwise it will have no effect in the direction of legalising
re-marriage with the first husband. Cf^ rule 59 and note;
and rule 65.
29. It will be understood that by consanguinity is
natural relationship in blood; while affinity is the term
applied to connections by marriage.
30. Surah IV, verse 27.
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31. Those prohibited by fosterage are: 1st, mothers, and
2nd, sisters of the foster-child. Those prohibited by affinity
are, 1st, the wife's mother; 2nd, the wife's daughter; 3rd, the
father's wife: 4th, the son's wife; and to these four cases
falls to be added as a sort of fifth case 5th, marriage
with two sisters at the same time. See below, rule 32. The
words "that are in your laps", have no restrictive significance :
marriage with any step-daughter is unlawful in case the
marriage with the mother has been consummated. Marriage
with a mother-in-law is construed as unlawful by the mere
13
31. As to those forbidden on the ground of fosterage
or affinity, the passage in the Kur-an is : "Your mothers
who suckled you, and your foster-sisters, and the
mothers of your wives, step-daughters that are in
your laps (i. e. in your charge) through wives of
yours to whom you have come in; but if you have
not come in to them, then there is no sin upon you :
and the wives of your sons whom you have begotten :
32. And you shall not bring together (in marriage)
two sisters, except what has occurred in the past."
33. Elsewhere the Kur-an says: "Do not marry
women whom your fathers have married."
34. Also the Prophet has forbidden on the ground
of fosterage any woman who would be forbidden on
the ground of consanguinity:
35. Or the bringing together in marriage of a
woman and her paternal or maternal aunt.
36. On a man marrying a woman, she becomes
prohibited for his ascendants and descendants, by virtue
of the contract, without consummation : and her mother,
grandmother etc., become unlawful for the husband:
37. But her daughters are not prohibited for him,
unless the marriage has been consummated, or dalliance
lias taken place in wedlock or on the supposition thereof.
fact of the contract with her daughter: cfl above, rule 26,
note ; and below, rule 36.
32. This prohibition is merely temporary: on repudiating
one sister, the man's marriage to the other will be legalised.
The rule applies to foster-sisters equally with natural sisters.
35. Khalll lays it down generally: it is unlawful to bring
together two women so related to one another that, were
one of them supposed to be a male, marriage between them
would be unlawful.
36. Cf. above, notes to rules 26 and 31...
37. L&jf xxA as here employed means a case of mis-
14
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take, a man having intercourse with another woman on the
supposition that she is his wife.
39. Such a marriage is, however, censurable (s^jCo). A
Scriptural woman means a Jewess or a Christian : the Prophet.
15
38. Illicit relations will not raise a prohibition
against marriage with women whom it would other-
wise be lawful for a man to marry.
MIXED MARRIAGES.
39. God has forbidden intercourse with unbelieving
women: but marriage with a scriptural woman is
permitted.
NON-FORBIDDEN UNIONS.
40. A man may marry a daughter whom his father's
wife has borne to another man; and a woman may
marry a son whom her father's wife has borne to
another man.
POLYGAMY.
41. It is lawful for a man to marry four free
Muslim or scriptural women: but let him observe
justice among his wives.
HUSBAND'S DUTIES TOWARDS WIVES.
42. He must give them maintenance and lodging
according to his means;
43. But a wife's right to maintenance will only
commence from consummation, or such time as the
husband has been invited to consummate the marriage,
the wife also being capable of intercourse.
recognised both Jews and Christians as standing on a different
footing from idolaters, in respect that they believed in in-
spired writings.
41. There is a hadlth: "If a man has two wives, and dues
not observe justice between them, he will appi-ur at tin 1 la-t
day shorn of half himself."
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44. Contrast with a marriage by delegation, which is lawful,
tlio, unlawful case of the parties, not merely leaving the
dower unfixed, but positively agreeing that none shall be
paid : see above, rule 19, note.
50. Islam validates their previous marriage so long as
there is no impediment in the way, such as relation within
the forbidden degrees of consanguinity or fosterage.
17
MABB1AGE BY DELEGATION.
44. A marriage by delegation is lawful : this occurs
where the parties enter into the contract without
mentioning the dower.
45. The husband is not entitled to consummate the
marriage until he has assigned the woman a dower.
46. If he appoints her the customary dower, the
marriage is binding on her.
47. If the dower which he names is less than the
customary amount, she has the option of revoking
the marriage.
48. If she dislikes the dower, they are to be
separated, unless the husband induces her to acquiesce,
or assigns her the customary dower; in which case
the marriage binds her.
APOSTASY.
49. Where one of the spouses apostatises, the
marriage is annulled by repudiation; or, as other
authorities maintain, without repudiation.
CONVERSION.
50. When two unbelieving spouses are converted
to Islam, their marriage is maintained.
51. If one only embraces Islam, their marriage is
annulled without repudiation.
51. The supposition here is either (a) that the husban.l.
who is converted, has a pagan, not a scriptural, woman t
wife; or (b) that the wife is the convert, in which case i
immaterial whether the husband be a scriptural man or
pagan.
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54. MajTisIyah, which we have here translated "pagan",
means a woman who is neither a Jewess nor a Christian
(nor perhaps a Zoroastrian), but properly a Magian, or by
extension an idolatress or follower of some religion other
than those indicated above.
55. The selection must be made from among such of his
wives as are permitted in Islam.
50. The supposition here is that both spouses take the
oath of imprecation mentioned below in rule 117: otherwise
if only the husband takes the oath and the wife draws back,
there is no annulment and no perpetual impediment to
matrimony.
19
52. If the woman is converted, the husband is the
person best entitled to her, in case he also embraces
the true faith during her retreat.
53. If the man is converted," while the woman
remains a scriptural woman, his right to his wife
continues.
54. If she was a pagan, and enters Islam immedi-
ately after him, they remain husband and wife: if,
however, her conversion be delayed, she becomes
separated from her husband.
55. When a polytheist with more than four wives
enters Islam, let him choose four and separate from
the rest.
PERPETUAL IMPEDIMENTS.
56. A perpetual prohibition against marriage arises :
(1) When a man prosecutes an action of imprecation
against his wife;
57. (2) When a man marries a woman during her
retreat, and intercourse takes place during the retreat.
THINGS FORBIDDEN.
58. One woman may not be given in marriage by
another woman, nor by a non-Muslim man.
57. Even though the intercourse be after c iddah, tin-
impediment will still arise in case the marriage has been
contracted during c iddah. Cf. rule 21 and note.
58. This is a hadlth: "A woman may not many another
woman." A woman may be appointed a testamentary guardian,
and as such will be in a position to exercise constraint over
her wards, but for the application of this rule in the case
of such of them as are females. It is a further condition
of walayah that the wall, besides being a man. must I..-
a Muslim.
20
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59. There is a hadlth: "He said, 'Shall I not inform you
"of the borrowed goat?' They said, 'Yes, messenger of God.'
"He said, 'That is the muhallil!' Then he added, 'May God
"curse the muhallil and the man who employs him.' " The
muhallil means a man who marries a woman irrevocably
repudiated by her husband, for the express purpose of ren-
dering lawful her re-marriage with the latter. Cf. above,
rule 27; and below, rule 65..
60. A marriage so contracted is to be annulled even after
consummation.
61. The Kur-an having fixed the shares to be received by
heirs of the various kinds, any contrivance by which that
allocation can be defeated must be unlawful. One contrivance
of this sort would be for a man suffering from a mortal
disease, or one likely to prove such, out of a desire to benefit
21
59. It is not permissible for a man to marry a
woman with intent to render her lawful for another
man by whom she has been irrevocably repudiated;
and such a marriage will not render her lawful for
the former husband.
MARRIAGE ON PILGRIMAGE.
60. It is not lawful for a man who has donned
the pilgrim's garb to marry, or to contract marriage
on behalf of another.
MARRIAGE DURING ILLNESS.
61. A marriage contracted by a man during sick-
ness is unlawful and falls to be annulled.
62. If consummation has taken place, the wife will
be entitled to dower out of the disposable third in
preference to his legatees.
63. But she will have no right of inheritance.
64. If a sick man divorces his wife he is bound
thereby; but she is entitled to share in his succession,
if he dies of the same complaint.
a certain woman, or perhaps intending to injure his other
heirs, to marry a woman, so that upon his death she would
become entitled to a fourth or an eighth of his succession :
hence the general prohibition against marriages during any
dangerous illness. They are to be annulled whether before or
after consummation. If, however the husband recovers, ami
the marriage is not discovered until after his recovery, it
will be allowed to stand.
62. A man may not by will dispose of more than a third
of his estate; this is the meaning of the disposable /////</.
64. The Prophet forbade the introduction of an heir int >
an inheritance, and equally therewith the exclusion of an
heir naturally entitled: repudiation during a dangerous
illness therefore, is equally objectionable with iium-iugi' during
a dangerous illness, as being a means of interfering with tin*
divinely instituted scheme of succession.
22
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00. "That is heretical (jLoJo) which the law-giver regards
as censurable." Al-Sharnubl.
07. There is a hadlth: "Of all things permitted, repudiation
is the most hateful to God."
08. Neglect of any of the four conditions mentioned in the
rule will make the repudiation heretical.
REPUDIATION.
65. A man who has repudiated his wife by a triple
repudiation, may not resume cohabitation with her,
until she has married another husband.
66. It is heretical for a man to pronounce a triple
repudiation in a single utterance; but, if it be done,
it will bind the husband.
67. Repudiation in accordance with tradition is
permitted.
68. A repudiation is in accordance with tradition
when (a) the man repudiates his wife during a period
of purity intervening between her menstrual courses;
(b) when he has not approached her during that period ;
(c) it must be a single repudiation, and (d) one repu-
diation ought not to be followed by another before
the expiry of the retreat resulting from the first.
69. The husband may take back a wife who men-
struates so long as she has not entered upon her third
monthly course.
70. If she is not menstruating, or has changed her
way of life, he may repudiate her at any time when
he pleases.
71. The rule is the same with regard to a preg-
nant woman.
72. She can be taken back by her husband at any
time before childbirth.
73. A woman observing retreat by mouths can be
taken back at any time before the retreat expires.
69. The recall may be made by formal declaration. <;
inferable facts and circumstances, such as the resumpti
intercourse.
24
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74. Surali, 2, 228.
75. His doing so is bar am, forbidden, not merely heretical.
77. Tlie meaning is that the separation will continue un-
less the husband takes the woman back. Re-marriage, however,
25
74. The word kar 3 (occurring in the Kur-an) has
the meaning of the interval between two courses.
75. It is forbidden for a man to repudiate his wife
during her courses; if he does so, it binds him; but
he will be constrained to take her back so long as
the retreat has not expired.
76. As for a wife with whom he has not cohabited,
he may repudiate her whenever he pleases.
77. A single repudiation separates the woman from
the man.
78. A triple repudiation makes relations between
them unlawful, except after her marriage to another
husband.
79. Whoever says to his wife, "You are repudiated",
pronounces a single repudiation, unless he intended
more than that.
RELEASE.
80. Release is an irrevocable repudiation, (even
though the word "repudiation" may not have been
employed), in which the wife gives a husband some-
thing in consideration of which he relinquishes his
right over her.
FORMULAS OF REPUDIATION.
81. When a man says to his wife, "You are repu-
diated finally", this is a triple repudiation, whether
consummation has occurred or not.
may take place without the necessity of marriage to another
husband intervening, contrary to the principle governing
a triple repudiation: see below, rule 78 and note.
78. Cf. above, rules 27, 59, 65.
26
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8'2. The interpretation put upon these expressions by the
jurists, it must be remembered, is based upon the customary
employment of them by Arabs. Among non- Arabic-speaking
Muslims, they are of force only so far as susceptible of ana-
logical extension.
27
82. If the man says, "You are free", or "You are
single", or "You are prohibited", or "The rope is on
your back", this is regarded as a triple divorce where
consummation has occurred.
83. In the case of a wife with whom he has not
cohabited regard is to be had to the husband's intention.
KIG-HTS OP REPtfDlATED WIVES.
84. A woman repudiated before consummation is
entitled to half the dower.
85. A woman who has been previously married
may, however, waive her claim.
86. If the bride be a virgin, the right to waive
her claim rests with her father.
87. When a man repudiates a wife, he ought to
give her something by way of compensation; he is
not, however, compelled to do so.
88. There is no occasion for compensation where
(a) consummation has not occurred, and a dower has
been assigned to the woman; nor (b) in the case of
a release.
BIGHTS OP WIVES ON DEATH OP HUSBAND.
89. Where the husband dies without having assigned
a dower to his wife, and without having cohabited
with her, she will be entitled to a share in his inheri-
tance, but not to dower.
84. Kur-an, 9, 238.
88. This rule must not be confounded with rule 20, for-
bidding marriages for a fixed period, where the same
is employed in a different sense.
28
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90. "Something definite" (*JLxx) ^,5^) means something less
than the customary dower.
91. But there can be no rejection for diseases supervening
on marriages. It is necessary to observe the important
practical difference between rejection and repudiation: in the
former case nothing is due by the rejecting husband; in the
other, lie must pay half or the whole of the dower. Again,
the right of rejection, (unlike repudiation) may be exercised
by the woman as well as the man.
93. The principle of the different rule applied in this case
from that governing the one which precedes, is that a distant
relative (for example, a cousin) cannot be presumed to have
29
90. If consummation has occurred, the wife is
entitled to the customary dower, unless she had
agreed to something definite.
GROUNDS OP OPTION.
91. A woman may be rejected on account of
insanity, elephantiasis, white leprosy, and disease of
the genital organs.
92. If the man consummates the marriage not being
aware of the defect, he must pay the dower, but may
recover it from her father or from her brother, in
it is a brother who has married her.
93. But if she is given in marriage by a wall
who is not one of her near relations, the husband can
recover nothing from the wall; and the woman is
entitled only to a fourth of a dinar.
94. Where the bridegroom is impotent, he is allowed
a year's delay: if he consummates the marriage, well
and good ; if not, the woman is entitled to a separation,
if she pleases.
HUSBAND MISSING.
95. 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.
known of the defect; whereas it is almost impossible to con-
ceive that a father or a brother should have been ignorant
of its existence. The woman, must return the dower to IHT
husband except a quarter of a dinar, which she is allowd
to retain as "God's due" (jjjf \^z>).
94. The woman will be entitled to the half, or the wlm !
flower, according as the separation takes place during or
after the expiry of the year.
4
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97. Seventy years is according to the prevailing view
regarded as the limit of human life for the purposes of this
rule. Circumstances, however, such as the recurrence of a-
terrible epidemic in the place where the deceased was last.
heard of, are also to be taken into account.
98. For example it is lawful to say, "I desire you", or "I
love you". Sending presents is also permissible; but the man
must not afford the woman actual maintenance.
31
96. The woman shall observe a retreat of the
same duration as after a decease; thereafter she may
marry if she pleases.
97. His succession will not fall to be distributed,
until the expiry of such a period as would transcend
the possible limits of his life.
RETREAT.
98. A woman may not be sought in marriage
during her c iddah; but there is no harm in suggest-
ions made by complimentary speeches.
RESIDENCE WITH BRIDES.
99. When a man marries a virgin, he may stay
with her for seven days, without (having to compen-
sate) his other wives. In the case of a non-virgin, he
may remain three days.
REPUDIATION BY A MINOR ETC.
100. A husband who is under age cannot repudiate
his wife.
101. (a) A wife to whom the husband has given
the right of repudiating herself, or (b) one to whom
he has given the option of divorce, may exercise the
right so long as the meeting of the parties is not
broken up.
100. But his guardian may do so on his behalf, when it
is to his advantage.
101. The first case here (a) is that of al-mumal lakuh,
i.e. a woman to whom her husband has said, "I niukr you
mistress of your own repudiation"; the latter (b) refer- t .
al-mukhayyarah i.e. a woman to whom h<> h;i< -aid U I
give you the choice of your own repudiation".
32
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105. The judge will give him the choice of divorce or
returning to his wife.
106. An example of an injurious assimilation is where a
man says to his wife, "You are to me like the back of my
mother", or "of rny sister", or any relative within the for-
bidden degrees: the implication being an intention to dis-
continue marital relations. Kur-iin S8, 1 5.
33
102. The husband may in the case of a wife, made
mistress of her own repudiation, deny (having intended)
anything beyond a single divorce.
103. A woman given the choice of her own repu-
diation, can only pronounce a triple repudiation, nor
the husband pretend that such was not his intention.
VOW OP CONTINENCE.
104. A vow of continence occurs when a man swears
to discontinue relations with his wife for over four
months.
105. He will not be divorced from her, until after
expiry of the period allowed in the case of such vows,
(which is four months), and a summons from the judge.
INJURIOUS ASSIMILATION.
106. Whoever addresses an injurious assimilation
to his wife, must cease marital relations with her
until he has made expiation.
107. (Expiation may be made) by freeing a Muslim
slave, free from defect, in the ownership of whom no
others are partners, and who is not already partly
manumitted.
108. If the husband cannot accomplish this, he
may fast for two months in succession;
109. Or, if he is unable to do that, he must feed
sixty poor persons, giving them two mudds each.
107. A slave allowed to redeem himself by payment of a
certain sum will be in a position in which he may be regarded
as. partly manumitted.
109. Mudd is a dry measure equivalent to about iiiiu'trrn
34
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115. When a man brings a charge of adultery against his
wife, without averring ocular proof or repudiating her child,
lie is to be punished as for slander.
116. Cf. above, rule 56 note.
117. The proceedings must be solemnly conducted before
35
110. He ought not to have intercourse with his
wife, by night or by day, until the expiation has
been completed: but if he should have intercourse
with her, let him ask pardon of God.
111. If the intercourse has taken place after he has
begun the expiation, by feeding the poor or fasting,
let him begin the expiation over again.
112. There is no objection to manumitting as ex-
piation for an injurious assimilation, (a) an one-eyed
slave, or (b) a slave below puberty.
113. But it is more commendable to pray and fast
according to our view.
ACTION OP IMPRECATION.
114. An action of imprecation occurs (a) where a
husband repudiates the child with which his wife is
pregnant, on the ground of marital relations not having
preceded; or fb) where he avers having found her in
flagrante delicto.
115. There is difference of opinion with regard to
allowing an action of imprecation merely upon grounds
of suspicion.
116. After separation by action ot imprecation the
parties may not re-marry.
117. The husband begins, declaring four times, "I
testify by God etc.": then a fifth time, he pronounces
an imprecation upon himself, in case he has spoken
falsely. The wife then declares her innocence four
times; and the fifth time, she invokes the wrath of
God. Thus it is prescribed in the Kur-an.
an assembly of people, in the most sacred place in tin-
town, i. e. in the Mosque.
36
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JoJc> UCo if L^i Xao^ >l XSlL
li
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5 U "iff C1\J*^\.
37
RELEASE.
118. A wife may procure her release from her
husband, by surrendering her dower, or more or less
than her dower.
119. An exception is made where the release is
arranged to the woman's detriment : in that case she
receives back what she has surrendered and the release
is nevertheless binding on the husband.
120. Eelease involves irrevocable repudiation, (pre-
cluding cohabitation); unless in case of a new marriage
being entered into with the woman's consent.
FOSTERAGE.
121. An impediment from fosterage will arise when
the woman's milk has found its way into the child's
system, during the first two years of infancy.
122. A single act of suckling will suffice to create
the impediment.
123. Suckling after expiry of the first two years
of infancy will not have this effect, unless when it
has taken place whithin a month, or as some author-
ities say, a couple of months, from the expiry of
the two years.
124. Where a child has been weaned within the
first two years of infancy, so as to have become inde-
pendent of milk, and capable of subsisting on food,
an act of suckling thereafter will not create the im-
pediment.
125. Milk entering the child's system, either by
the mouth or the nose, will create the impediment.
38
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U l^JLsaJ
LpUu 'bo *x
I slJ
JH
O5
JC>L\J ^ 3! Lgj J
126. The prohibition extends to the foster-mother's children
by other husbands, and to her present husband's children by
other wives.
127. The brother may even marry the foster-mother her-
self; the prohibition applying only to the foster-child and
his descendants and not to his ascendants or collaterals.
128. The reference is to repudiation after consummation
contrast below, rule 1M1.
39
126. When a woman has suckled a male child, her
daughters, and her husband's daughters, whether
previously or subsequently begotten, are the sisters
of the suckling.
127. But a brother of the suckling may marry the
foster-mother's daughters.
CHAPTEE II.
ON RETREAT, MAINTENANCE, AND PURIFICATION.
128. The period of retreat in the case of a woman
repudiated by her husband, whether she be a Muslim
or a scriptural woman, is three clear intervals between
her menstrual periods.
129. If she have not begun or have ceased men-
struating, the period will be three months.
130. Where the woman is pregnant, her retreat
will continue until the birth of the child; and this
whether the cause of the retreat be death of a hus-
band or repudiation; also whether she be a Muslim
or a scriptural woman.
131. A woman repudiated before consummation has
not to undergo retreat.
132. On the death of her husband, a woman shall
undergo a retreat of four months and ten days;
whether she be minor or adult ; whether consummation
has taken place or not; and whether she be a Muslim
or a scriptural woman.
130. xJU*/o has been substituted here and elsewhere in
the text for -> in accordance with the principle which \\v
have followed throughout, of omitting references to sla MTV
as being without practical utility in British Colonies or Pro-
tectorates. *
40
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ols^Jl j
SJotll
.n
41
133. But if, being of age and menstruating, she
is in doubt (as to whether she is not pregnant) owing
to a delay in the appearance of the menses, she shall
continue the retreat until the removal of such doubt.
134. When the widow has not begun or has ceased
to menstruate, she is debarred, in case her marriage
has been consummated, from re-marrying until the
expiry of three months.
MOURNING,,
135. Mourning consists in this, that a woman under-
going retreat after the death of her husband may not
adorn herself with jewellery or kohl or any other
means. She ought to avoid all colours except black,
and all perfumes: she ought not to dye her fingers
with henna, and should not use scented oil, or dress
her hair with any scented substance.
136. Mourning is incumbent on all females, whether
major or minor; but there is a controversy as to
whether it is incumbent on a scriptural woman.
137. A woman who has been repudiated by her
husband, is under no obligation as to mourning.
138. A scriptural woman, left a widow or repudiated
by her Muslim husband, is in either case bound to
undergo retreat.
LODGING OP WIVES.
139. A husband is bound to provide lodging (during
retreat) for wives repudiated by him subsequent to
consummation.
O 5
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43
140. But he is not bound to provide maintenance,
except wher6 the repudiation has been short of a triple
one or where the woman is pregnant: for in that
case it is immaterial whether the repudiation be single
or triple.
141. A woman who has obtained a release from
her husband is not entitled to maintenance, except in
the case of pregnancy.
142. A woman separated from her husband by
action of imprecation, will, even in the case of her
pregnancy, have no claim to maintenance.
143. A widow is not entitled to maintenance during
her retreat: but she is entitled to lodging, in case
her house belonged to the husband OP he had paid
the rent.
144. A woman ought not to change houses during
her retreat, whether following on the death of her
husband or on repudiation.
145. Where the landlord refuses the usual rent and
ejects her, she may leave the house, but should
remain in the place to which she removed until the
expiry of her retreat.
146. A woman must suckle her child so long as
the marriage-tie remains; except where it is not cus-
tomary for women in her position to suckle their
children.
147. A woman repudiated by her husband is entitled
to suckle her child, even against the wishes of the
father : she may if she pleases claim hire for suckling it.
144. When it is necessary she may change her abode:
e. g. when the first house is in a state of dilapidation, <>r
she is afraid of thieves.
44
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V
o > . if 1
150. The order here followed, it Avill be noticed, differs
very widely from that which applies in succession : (see below,
appendix L): the preference being given to females over males,
and to the maternal over the paternal stock. An agnate
will in no case obtain the custody, unless he has some female
(e. g. his wife) who will take charge of the child.
45
CUSTODY OF CHILDREN.
148. A woman repudiated by her husband is entitled
to the custody of her child till it attains puberty in
the case of a boy, or in the case of a girl till her
marriage followed by consummation.
149. If the mother be dead or has remarried, the
person next entitled to the custody of the child is the
grandmother: after her comes the maternal aunt.
150. Failing maternal relations, the right will pass
to the child's sisters and paternal aunts; failing these,
to the child's agnatic relations.
MAINTENANCE.
151. A man is bound to provide maintenance only
for the following : (a) His wives : his obligation
to do so is the same whether they be rich or poor.
152. (b) His parents, when they are needy;
153. (c) His minor children who have no property.
This obligation towards children will terminate, in the
case of males, on their attainment of puberty, where
they are not disabled by any chronic disease; in the
case of female children, on their marriage followed by
consummation.
151. Where the parents are capable of supporting them-
selves, even though by an occupation derogatory to their
dignity, the son is not bound to support them.
152. If his mother (or daughter) marries a poor man. tin 1
obligation to provide her with maintenance does not drop:
if the husband can provide part, the son (or father) is boninl
to supply what more is necessary.
153. The reference is to chronic disease disabling tin- >"ii
from earning his living by an occupation suitable to his rank
in life.
5
46
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f . too-
JU (iUil ^E Jfei LgJU ^ UJi f jUi . lo
f JU
154. Thus there is no obligation to support sisters or grand-
children. Neither is a woman bound to support her own
child, left an orphan by the death of his father, beyond
47
154. No other relatives except those mentioned
above are entitled to maintenance.
155. A man who is in good circumstances ought
to provide servants for his wives.
BURIAL OP WIVES.
156. There is controversy as to the husband's
obligations with respect to his wife's burial.
157. Ibn al-Kasim says the expenses are to be
defrayed out of her own property; c Abd-al-Malik says
they should come out of the husband's property.
158. Sahnun says that if the woman is solvent the
expense should be borne by her estate ; but if she be
insolvent, then by that of the husband.
paying for its suckling when she has not milk to suckle it
herself: the reason for this seemingly hard rule is the policy
of the law to throw the whole burden of the child's support
upon the father.
3,
Lo .
JT
159. By making preparations (jou . here the author
refers to calling witnesses to take notice of his will; the
propriety of doing so is expressly laid down in the Kur-an
V, 105 107 with regard to oral testaments. In the case of
written wills, non-compliance with the requirement will render
the document invalid even though in the testators own hand-
writing; unless indeed the deceased has made a declaration
to the effect that any document found in his handwriting-
is to receive effect.
160. The reason of this rule is the necessity of checking
any interference witli the principles of succession : cf. rules
6164, 285, 286288. A bequest in favour of an heir is
invalid, even though sanctioned by his co-heirs; but it may
receive effect as a gift from them, or such of them as accord
their sanction.
161. For the meaning of "disposable third", see above, rule
02, note. The limitation of the testamentary power to a third
CHAPTER III.
ON WILLS.
159. A man who has means to dispose of by will
ought to make preparations for that purpose.
160. No bequest can be made in favour of an heir.
161. Bequests are to be paid out of the disposable
third of the deceased's estate; if they exceed the third,
the excess is to be rejected, unless the heirs ratify it.
162. Dues of purification left unpaid, in the event
of the deceased bequeathing the amount, will be paid
out of the disposable third in preference to other
legacies.
163. When the third is insufficient, the unpreferred
legatees will divide it among them.
164. A man may cancel a bequest made by him.
of the estate is not laid down in the Kur-an, but rests on a
traditional direction given to Abu Wakkas, when the 1;
was supposed to be dying. The clause "unless the heirs ratify
it", covers rule 160 as well as the present rule: in either
case the principle is the same, viz., that the legacy, or tin-
excess over the disposable third, if allowed to stand, will
be a gift from the co-heirs or heirs, rather than legacy from
the deceased.
162. Zakat is a religious tax levied on the visible property
of any Muslim as ascertained by agents employed tor the
purpose: its object is the relief of the poor and public ser-
vices. Properly it is payable in kind, and for this reason.
zakat already due and unpaid stands much in the same l.-.il
position as articles deposited with the deceased, debts seen re. I
by a pledge and other real rights: hence the special treat-
ment accorded to it.
163. The process will be the same as that applied in tin-
case of shares in a succession exceeding unity; see rule *J.".I.
305, 306 and appendix C.
>Joo
j yG O
. m
165. The distinction between a gift (x*>) and a chari-
table donation (xJiJsjo) must be noted. The former occurs
where possession is given of some useful thing for the benefit
of the donee ; the latter where possession is given for God's sake.
CHAPTER IV.
GIFTS, AND CHARITABLE DONATIONS.
165. A gift, or a charitable donation, is only com-
plete on possession.
166. If the donor dies before the donee enters on
possession, the gift will form part of his succession.
167. Where the gift has been made during the
deceased's last illness, it will be paid out of the dis-
posable third; provided always that it is not in favour
of an heir.
168. A gift, in favour of a near relative, or in
favour of a poor person, is like a charitable donation:
i. e. it is irrevocable.
169. A charitable donation in favour of a child is
irrevocable: but a donor may take back an ordinary
gift made to a child, minor or major.
167. This is another example of the law's vigilance t<>
prevent any infringement, direct or indirect, of the law of
succession; (cf. above, rules 6164): gift during lust illnr^
being a means by which the principles of succession might
be defeated, a gift made under such circumstances will IKIM-
effect only as a legacy, i.e., it will stand only to tin- I'xtmt
of a third of the deceased's estate. As to the prohibition
against legacies in favour of an heir, see rule 160.
52
ti)JJsJ Xu' ^ Lo . iw
ST. Ui 3 Jvf
auJf
'170a. For example, a grown-up son has received a sum of
money from his father, and entered upon matrimony in
reliance thereon as a means of defraying the expenses of the
married life.
170c. For example, forming a piece of iron into an imple-
ment of any sort.
53
170. But a gift to a child will be irrevocable where
(a) it has formed the basis of a marriage; (b) where
the child has borrowed money in consequence there-
of; (c) where the child has changed the nature of
the gift by manufacture.
171. A mother may revoke a gift to her child, so
long as the father is alive; but when the father dies,
the gift becomes irrevocable: because a gift in favour
of a person who is an orphan cannot be revoked.
172. Orphanhood consists in the loss of one's father.
173. In the case of a gift by a father to his minor
child, possession may be retained by the father, sub-
ject to the principle that he shall not inhabit or wear
(in the case of a garment) the subject of the gift:
174. He may take possession on behalf of the
child only of specific articles.
175. In the case of a gift to an adult son, retention
of possession is not permissible.
176. Charitable donations may not be revoked.
177. The only mode in which they may return to
the donor will be by inheritance.
178. There is no harm in a donor drinking the
milk of an animal given by him as a charitable donation.
173. Where a father retains possession in this way, IK-
must in order to validate the gift call witnesses t.. attest
the making thereof; it is not necessary, however, tor him t:
specifically state the retention of possession.
174. The opposite of specific articles would be diHi;ini< or
dinars; (excluding always the case of these also being ren-
dered specific by marking).
54
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180. This reason, (like IT. 61, 64, 167, 285, 286, 288) is
founded on respect for the law of succession: a man ought
55
179. He may not buy what he has so given.
180. It is censurable for a man to make a gift of
all his property to any one child: he may so dispose
of only a part.
181. He may give the whole of his property to
the poor, for the sake of God.
182. When a donee fails to take possession of a
gift made him, until the donor falls ill or becomes
destitute, he cannot take possession of it.
183. If the donee dies, his heirs may claim the
gift against a donor who is in good health.
not to defeat his natural heirs, and any course of action
which will have that effect is subject to censure.
181. This holds good so long as the man does not deliber-
ately intend to injure his family.
,Uf
3! X
184. The party called cAii (which word we have here
translated "plaintiff") is not necessarily the one who first
brings the matter before the judge: it is rather a matter
for the court to determine on which the onus probandi lies.
'The
is he who says It was: the r-. V ^ \\
is he who says It was not. Proof is demanded from the
former on account of the weakness of his side; an oath
is demanded from the second on account of the strength of
his side, as having the benefit of the main principle which
is in favour of non-liability. An oath is not administered
immediately on the statement of the claim, in cases where
the matter can only be established by two honourable wit-
nesses (e. g. repudiation or marriage): if, however, one witness
gives evidence in support of the claim, then an oath is due
from the defendant to rebut the testimony of that witness."
Al-Sharnubl.
CHAPTER V.
ON JUDGMENTS AND EVIDENCE.
184. The burden of proof is on the plaintiff: an
oath is incumbent on him who denies.
185. No oath can be exacted unless proof has been
given of (contractual) business relations between the
parties, or where there are grounds for strong suspicion.
186. When the defendant refuses the oath, judg-
ment is riot given in favour of the plaintiff till he
himself has sworn, in a case where he makes his
claim on the ground of certain knowledge.
185. No oath will be exacted until business relations have
been proved to have existed between the parties, if only
by a single act of borrowing and lending. xlfMI mean
suspicion; but the modern practice is in favour of administer-
ing the oath without inquiry as to business relations or
grounds of suspicion.
186. The rule applies to cases where the plaintilV. tor
example, pretends to identify the arcticle claimed by him.
specifying its quantity, quality etc.: under such circumstances
he must, even when the defendant evades the oath, ronlirm
his pretensions by swearing himself. But if on the other haml
he rests his claim upon mere grounds of suspicion, (e. g.
declaring that he suspects a man of having stolen his pro-
perty), then the defendant is held to be convicted at once
by his refusal to swear, and no oath will be exacted troiu
the plaintiff.
58
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. U1
jl 1 .11
j JlLji DV J Jou iili J^JLLli vA->_5 i^lj .11!
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188. This applies to proceedings in the town of Medina.
189. E. g., the mihrab which is the arched part of the
Mosque where the Imam stands : it is in the portion of the
building towards Mecca.
59
187. The oath to be taken is: "By God, besides
whom there is no other god".
188. The oath is to be taken standing, near the
pulpit of the Prophet, with regard to claims lo the
amount of a quarter ot a dinar or upwards.
189. Outside Medina the oath is to be taken in
the principal Mosque, and in the most venerated part.
190. To an unbeliever the oath is to be adminis-
tered in a place which he holds in veneration.
191. When, after the defendant has sworn, the
plaintiff discovers some evidence of which he was not
aware before, judgment may be given thereon in his
favour :
192. But if he knew beforehand of the existence
of the evidence, according to one view it will be in-
admissible: according to another it may be accepted.
PROOF BY EVIDENCE.
193. Judgment with regard to questions of property
may be given on the evidence of one witness and an
oath; but no judgment may be given on such grounds
with regard to a marriage, or a repudiation.
194. The testimony of women is inadmissible except
in questions as to property.
190. "A Jew is to be sworn in a synagogue; a Christian,
in a Church; a majiisi in a fire-temple."
191. The plaintiff must take an oath that he did notkn-w
of the evidence before, or that he had forgotten it.
60
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3
L>Lvi :p "ii . HA
UP
195. That is to say that, for example, four women are not
equal to two men; nor will one woman and an oath be
accepted as sufficient.
197. But one woman and an oath will not suffice. The
second illustration refers to a case where an inheritance or
the like depends on the question whether a child was born
alive or dead : crying is one of the recognised tests of live-birth.
61
195. A hundred women are equal to two women
and two women are equal to one man.
196. Judgment may be given on the testimony of
women coupled with that of one man, or with an oath
in cases in which one witness and an oath are accep-
table.
197. The testimony of two women aloge is to be
accepted with regard to matters about which men can
have no knowledge : e. g. childbirth, or the crying
of a child.
WHAT TESTIMONY IS ADMISSIBLE.
198. The testimony of an enemy, or one suspected
of irreligion, is not to be admitted.
199. None but honourable persons are to be accepted
as witnesses.
200. A person who has undergone punishment for
crime, may not be accepted: nor the testimony of a
minor: nor that of an unbeliever.
201. When a man, who has undergone punishment
for fornication, repents, his evidence may be accepted
except in a case of fornication.
202. A man may not give evidence in favour of
his parents; nor parents in favour of the son.
200. In order to be admitted to give evidence a man must
be: first, a Muslim; 2ndly, free; 3rdly, possessed of rea>"ii :
4thly, adult; 5thly, of pure morals.
202. The meaning is that a descendant of any sort may
not give evidence in favour of an ascendant, et vice versa.
6
62
ib "^ aujJ b>
203. Nor may a man give evidence for his father-in-law,
nor his mother-in-law, nor his step-son; and similarly with
respect to the woman's testimony.
204. The meaning is that a man who is pre-eminent for
integrity of character may be admitted in such a case.
205. This excludes anyone who tells a lie more than once
in a year.
206. The same rule applies to one who is proved by evi-
dence to have secretly committed one of the greater sins:
(drinking wine, lending money at interest) ; so long as he does
not repent.
207. An example of securing a profit is giving evidence on
behalf of a partner. An example of escaping a loss, is giving
evidence in favour of a common debtor against another cre-
ditor of that debtor, to the effect that he has paid his debt
to the other creditor; the result being that the debtor,,
escaping liability for the one debt, will be in a better position
to pay that due to the would-be witness. In both these cases-
the testimony will be rejected.
63
203. Nor a husband in favour of his wife; nor a
wife in favour of her husband.
204. A man who is of honourable character may
be admitted to give evidence on behalf of his brother.
205. A person of lying habits is not to be ac-
cepted as witness.
206. A person who openly commits any of the
greater sins is inadmissible.
207. A man is not to be accepted as witness with
regard to a matters where his own profit or loss is
concerned.
208. Nor a testamentary guardian on behalf of his
ward; but he may give evidence against him.
TESTIMONY AS TO CHARACTER.
209. Testimony as to character may not be called
in the case of women; nor may they be discredited.
208. The rule may be stated generally that the fact of a
person being debarred from giving evidence on behalf of
another will not prevent him giving evidence against that
other.
209. Testimony as to character (JoJutxJ!) and the discrediting
of witness (^xj_>\xif) play a great part in Muslim judicial
procedure. The former is employed where it is desired to
bring as witness some person who is not personally known
to the judge : without such knowledge or what is equivalent
thereto no witness can be admitted: the equivalent is ta c dll,
i. e. the bringing of two honourable persons known to the
judge to testify to the good character of the witness whom
it is desired to have admitted Taj rlh is the converse pr"
When witnesses have been brought on one side, it is tin*
duty of the judge to invite the opposing party to show can-'
why their testimony should be rejected: and where valid gromnN
of objection (e. g. impiety, looseness of life, bribery etc.) :uv
averred and proved, the evidence of the first witnessess will
be treated as non-existing. See also Appendix A.
64
JyM cr '
X&Ili
210. This rule can have importance only where Arabic is
the language of the country.
212. I. E., inter se\ see p. 101, (h). The law is thus framed
in view of the ease with which infantile evidence may be
vitiated by suggestion. Wounding includes homicide.
213. The supposition is that the guardian has not the
custody of the persons of the wards, but merely charge of
65
210. Testimony as to character can be given only
in the form of a declaration that the witness referred
to is "honourable and acceptable".
211. A single person testifying to character will
not suffice.
MINORS.
212. With respect to charges of wounding, the tes-
timony of minors may be accepted, provided it is
offered before they disperse and before any adult
person comes among them.
PRESUMPTIONS RELATING TO GUARDIANS.
213. The burden of proof is on a guardian to show
that he has provided maintenance for his orphan wards ;
214. Or that he has delivered their property
to them.
215. But if the wards be in his custody, his state-
ment as to disbursements for their maintenance will
be credited where there are probabilities in its favour.
SETTLEMENTS OP CLAIMS
216. The settlement of claim is permissible, unless
where involving what is illegal.
their property: the had an ah (see above, rule 148) being
vested in some other (generally a female) relative.
214. That is to say, when the wards have come of ago, <>i-
been emancipated.
215. He will be believed on his oath.
216. The Sur-an, (IV, 127) says: "The friendly settlem.-nt
of disputes is a great merit". The passage has ivi'fivmv
specially to marriage; but it is capable of, and has commonly
received a wider application.
66
o'
.m
218. A testamentary guardian may provide for the carry-
ing on of his charge, by himself appointing a testamentary
guardian to succeed him therein in the event of his death.
His power to do so does not depend on his being specially
authorised to that effect by the testator.
220. His removal will be by the Cadi.
67
217. It may proceed upon an admission, or upon
a denial.
RULES AS TO TESTAMENTARY GUARDIANS.
218. A testamentary guardian of a testamentary
guardian is like the testamentary guardian.
219. A testamentary guardian may trade with the
property of his wards.
220. When an untrustworthy person has been ap-
pointed as testamentary guardian, he may be removed.
DISPOSAL OP ESTATE OF DECEASED PERSONS.
221. In matters of inheritance the order of pref-
erence will be: (1) funeral expenses; (2) debts of
the deceased; (3) legacies; (4) the succession distri-
butable among the heirs.
222. An acknowledgment of debt made by a man
during illness in favour of an heir is invalid : likewise
an acknowledgment of receipt of a debt due to him
by the heir.
223. A bequest (to enable another) to perform the
pilgrimage on the deceased's behalf is binding: but
it is more commendable in our opinion to make a
bequest for charitable purposes.
221. The succession proper is merely (4); that is to say,
what is left over after payment of the prior charges.
222. Cf. above, rules 6164, 160, 167, as to the law's vigilance
against any interference with the law of succession. The
reference is to a dangerous illness, likely to cause death.
O i 3 #i o
224. For some general outlines of the law of succession,
see (in the order in which they are here mentioned) appen-
dices D (division of heirs into "sharers" and "residuaries"
or "agnates"); C (reduction of fractional shares exceeding-
unity); L (rules of agnatic succession); G, T, K (agnatisation
of female heirs) ; F, H (assimilation of ascendants to descen-
dants et vice versa}. In appendix L some of the main differ-
ences between Muslim and European systems of inheritance
are pointed out: another which it may be well to point out
here, at the commencement of the subject, is that succession
in Muslim law necessarily implies succession ab intestato,
legacies being regarded as charges on the estate (like funeral
expenses debts etc.) the mlrath or inheritance to be distri-
buted among the heirs being merely what is left over after
payment of such prior charges : cf. above, rule 221 and note.
Under "brother" in this rule (r. 224) are included brothers-
german, consanguinean or uterine: for differences among them,
CHAPTER VI.
ON SUCCESSION.
224:. Male heirs are ten in number, viz: 1st, the
son; 2nd, the son's son, or any lower descendants;
3rd, the father; 4th, the paternal grandfather or any
higher ascendant; 5th, the brother; 6th, the brother's
son, even if remote; 7th, the paternal uncle; 8th, the
son of the paternal uncle, even if remote; 9th, the
husband; 10th, the patron.
225. Female heirs are seven in number, viz: 1st,
the daughter; 2nd, the son's daughter; 3rd, the
mother; 4th, the grandmother; 5th, the sister; 6th,
the wife; 7th, the patroness.
however, see below, rules 270 271. "Uncle" includes only pater-
nal uncles, german or consanguinean. The patron means in
general one who has manumitted his slave: on the latt.-r'-
death, leaving no nearer heirs, the manumittor (or his nearest
c asabah) will succeed to the estate. The mention thus made
of a matter closely connected with slavery, has (contiM 1
the principle stated in our preface, page XI) been retaiiu-.l
to avoid falsifying the author's enumeration of hi'irs.
224, 225. "Brother", "sisters" etc. here include brothers etc.
whether german, consanguinean or uterine: but see below,
rules 270 275. Grandmothers, maternal as well as paternal,
may succeed: indeed the former has in some instances the
preference: see below, rules 290, 291.
70
IxJ
O i
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226. "You shall have the half of what your wives leave,
if they have no child:" Kur-an, IV, 13.
227. It is immaterial whether the child be male or female :
even a child of fornication comes within the rule.
228. If the deceased leaves more than one wife, the fourth
(or the eighth, see rule 229) will be divided among them.
71
HUSBAND.
226. The husband's share in his wife's succession,
where she leaves neither child, nor a son's child is
a half.
227. If the wife leaves a child, or a child of any son
whom she has borne, whether to the husband surviving
her or to another, the widower's share will be a fourth.
WIFE.
228. A wife's share in her husband's succession,
where he leaves neither a child, nor a son's child, is
a fourth.
229. If the husband leaves a child, or grandchild
(son's child), whether by her or by another wife, the
widow's share will be an eighth.
MOTHER.
230. A mother's share in her child's succession,
where he leaves neither a child, nor a son's child or
lower descendant, nor two or more brothers (whatever
they be), will be a third :
Except in two cases, viz :
2300. Where the deceased leaves a wife and two
parents; then the wife will receive a fourth: the
mother, one third of what remains ; and the remainder
thereafter will go to the father;
230. gur-an IV, 12 (quoted in App. C). The author has
in the first instance (not in the second) used the word "son"
(Lgjuty with an inclusive signification, i. e. as meaning a son
or 'a daughter: we have accordingly translated it "child".
"Son's child" includes any lower descendant through iiialr<.
"Brethren whatever they are", means brothers or sisters,
german, consanguinean or uterine.
230a. See Appendix B.
72
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f JSJj jl
2306. See Appendix B.
231. See Appendix C.
232. See Appendix D.
233. "Each of his parents shall have a sixth of what he
leaves, if he has a child", Kur-an IV, 12. "Son's child": this
means a son's son. A grand-daughter (son's daughter) will
not deprive him of the character of a residuary. The same
remark applies to rule 234.
73
2303. Where the deceased leaves a husband and
parents, the husband will receive half the estate ; the
mother, a third of what remains; and what is left
will go to the father.
231. In other cases (than these two) the mother
will receive a third, (except where her share is
diminished by reduction), unless where the deceased
has left a child, or a son's child, or two brethren
(whatever they are): in such case her share will be
a sixth.
FATHER.
232. A father's interest in his child's succession
will extend to the whole estate, where he is alone.
233. Where the deceased leaves a son, or a son's
child, the father will receive a sixth.
234. Where the deceased leaves neither a child,
nor a son's child, the father will receive both a sixth,
and also whatever is left after payment of the shares
of the other sharers.
SON.
235. A son's interest in the succession of a parent
will extend to the whole estate, when he is alone.
234 Examples may serve to render clear the varying mitmv
of the father's right.
(a) Deceased leaves father, mother and daughter: daughter
is entitled to Y 2 , mother to '/ 6 , and the father to Ye as ^harer
and there remains Ye which he will take in the cli;ir;i<-ter
of agnate.
(b) Deceased leaves father, mother and two daughters : t \v. >
daughters are entitled to 2 / 3 , mother to Ye and father take-.
remaining Ye as a sharer.
(c) Deceased leaves father and grandson : father is entitled
to Ye as sharer, and grandson takes the remainder as agnate.
235. See Appendix E.
74
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.m
237. See Appendix F.
238. See Appendix G.
240. The grandson (like a son) excludes brothers and sisters
of the deceased ; but (unlike a son) he will not exclude a
but renders her 'a sab ah bi-ghayri-h i: See
grand-daughter,
Appendix G.
75
236. Where there are others along with him (e. g.
wife, parents, grandfather, or grandmother), he will
take what remains after payment of their shares.
237. A son's son comes in the place of a son,
when there is no son.
238. Where a son and daughter succeed together,
the son shall receive a portion equal to that of two
daughters.
239. Where there is a plurality of sons and daugh-
ters, whether few or many, they will divide in this
ratio either (a) the whole estate, or (b) what remains
after payment of the shares.
240. A son's son is like a son, in the absence of
a son, with respect both to participation and to ex-
clusion.
DAUGHTERS.
241. The share of a single daughter is a half;
that of two daughters, two-thirds. If there are more
than two, still they will receive no more than two-
thirds among them.
GRAND-DAUGHTERS.
242. A son's daughter is like a daughter where
there is no daughter: and two or more son's daugh-
ters are, in the absence of daughters, like two or more
daughters.
241. Kur-an IV, 12.
242. The grand-daughter (son's daughter) will be entitled
to half the succession, where (1) there is no son of the
deceased, whether standing to her in the relation of father
or of uncle, alive, to exclude her; (2) there are no daughters
of the deceased.
76
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243. See Appendix H.
244. See Appendix I.
245. Here there will be no complement for the grand-
daughters, as there are two daughters to receive the whole
two-thirds. Grandsons and grand-daughters will have the
77
243. If there be a daughter and a son's daughter,
the former will receive a half, and the latter a sixth
as complement of the two thirds.
244. If the son's daughters are more in number
than two, still they will not receive more than a sixth ;
(unless where they succeed along with a male). The
residuaries are entitled to the residue of the succession.
245. If there are two daughters, the son's daughter
will not be entitled to anything, unless there be with
them a brother: then they will divide with him the
residue of the estate, the male receiving a portion
equal to that of two females.
246. The existence of a male heir of lower degree
will have a like effect ; and the residue will be divided
between him and the female heirs in the same ratio.
247. Similarly, if a son's daughters inherit along
with a daughter, receiving a sixth of the estate, and
below them are son's daughters having along with
them in the same or a lower degree a male heir; the
residue of the estate will be divisible between that
male heir and his sisters, or those who are above him,
i. e. paternal aunts. But no participation in this way
will be granted to grand-daughters who receive any
portion of the two-thirds.
residue where there is any: but it may happen that tin-
whole estate is exhausted by the shares, e. g. AV!HMV tin-
deceased leaves two daughters ( 2 / 3 ), father (Vi), mother (Vg)
the sum of the fractions exceeding unity.
246, 247. See Appendix J.
78
. Vf A.
248. Kur-an IV, 175. The commentators interpret this text
as referring exclusively to brothers and sisters german or
consanguinean : in contrast to Surah IV, v. 15, which is
regarded as having application to brothers and sisters uterine.
A sister or sisters german will receive the shares here assigned
to them where (a) the deceased leaves no children or other
descendants through males, see rules 250, 251 ; (b) the de-
ceased's father is not alive, see rule 251 ; (c) she is not
agnatised by the existence of a male heir, see rules 249, 302
and Appendix P.
79
SISTERS.
248. The share of a sister german is a half: that
of two or more sisters, two-thirds.
249. If there be brothers and sisters german or
consanguinean, the property will be divided among
them, a male receiving the portion of two females,
whether they be few or many.
250. Sisters succeeding along with daughters stand
to them in the relation of residuaries: they inherit
what remains, but may not be aggrandised to the
prejudice of the daughters.
251. Brothers and sisters will be entitled to no
share when succeeding along with the father; or along
with a male child of the deceased; or along with a
child's child.
252. Brothers (or sisters) consanguinean are like
brothers (or sisters) german, in the absence of brothers
(or sisters) german.
249. This is another example of the agnatisation of a
female heir: cf. above, rule 238 and Appendix G. A sister
german may also be agnatised by the existence of a grand-
father: see below, rule 302 and Appendix P.
250. See Appendix K.
251. See Appendix L.
252. There is an exception in the case known as al-musli-
tarakah or "Participation", (see below, rule 263), UHMV
brothers consanguinean, unlike brothers german, will not be
admitted to share along with the brothers uterine.
80
$ oU->t J '^>) . X
*
253. This is analogous to the case dealt with in rule
243, being another example of the "complement of the
t w o-t h i r d s" being awarded. If there were two sisters german
they would be entitled to two-thirds (r. 248) : when therefore
there is merely one sister german and one or more sisters
consanguinean, the former receives a half (being all to which
she is entitled), and the remaining sixth is given to the
latter, being divisible among them when they are more than
one in number.
254. The male heir must in general be (a) of the same
class; (b) in the same degree; (c) of the same strength of
blood as the female heirs agnatised by him: (see App. G, T).
There are, however, exceptions to the rule: for example a
sister consanguinean will be rendered 'asabah, not only by a
81
253. If there is a sister german and a sister or
sisters consanguinean, the sister german will receive
a half, and the remaining sixth will go to the sisters
consanguinean.
254. If there are two sisters germaii, the sisters
consanguinean will receive nothing, unless there be
along with them a male heir: then they take the
residue, the male receiving a portion equal to that
of two females.
BROTHERS AND SISTERS UTERINE.
255. The share of a sister uterine, or of a brother
uterine, is the same, viz: a sixth each.
256. If there are more than one of them, they
divide a third; in this instance males and females
participate equally.
257. They are excluded from succeeding by a child
of the deceased; or a son's children; or a father; or
a paternal grandfather.
brother consanguinean, but also by the existence of tin-
grandfather: but, in accordance with the rule, she will not be
rendered 'asabah by a brother's son. Being agnatised, sisters
consanguinean will share the residue of the estate \\itli
brothers consanguinean in the usual ratio of one to two. But
where there are sisters german, and no brother consanguincim
to agnatise the consanguinean sisters, the residue will i:
a son of a brother german of the deceased exclusively ; neither
his own sister nor his aunt will be entitled to purtii-i|Mtr.
255. Kur-an IV, 15. Cf. rule 248 note and App. G.
256. Kur-an, ibid.
257. A brother uterine, not being related to the deceased
through males, can never succeed as an agnate: his riuht
rests entirely on the text of the Kur-an referred to al..\.-:
for some other peculiarities, see below, rules 263- -207 ;i'l
App. M.
82
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258. The author here and in several following rules repeats
83
BROTHERS GERMAN AND CONSANGUINEAN.
258. A brother, when alone, inherits the whole
estate, whether he be german or consanguinean.
259. A brother german excludes a brother consan-
guinean.
260. If there are one or more brothers and sisters,
.german or consanguinean, they participate together;
a brother receiving the portion of two sisters.
261. If there be a sharer along with a brother, the
sharer is to be satisfied first: and the brother will
receive the residue.
262. When brothers and sisters divide the residue,
a brother will receive the portion of two sisters.
263. When nothing remains for brothers and sisters
they will receive nothing; unless there be among the
sharers brothers uterine, taking the third, and there
is also a brother german, or brothers and sisters ger-
man together: then all will participate with the
brothers uterine in their third, all sharing equally.
This case is known by the name of "Participation".
264. Brothers consanguinean will not share with
brothers uterine; because there is no common bond
of maternity between them.
what he has already said expressly or by implication
above, rules 252, 254. A brother german is always an ajiiui.-.
unless in the case of al-mushtarakah mentioned below in
rule 263.
262. Cf. above, rule 264.
263. See Appendix M.
264. The favour shown to brothers german in this cat
not extended to brothers consanguinean; who, as a Is., a
brother consanguinean and a sister consanguinean, (see \\>\>.
M), will be entirely excluded.
84
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il
265. The reason is that the sisters being sharers, (unlike
brothers german, who are properly agnates), are entitled to
their fixed shares in any case. Thus if the heirs be husband,
mother, brothers and sisters uterine, and one sister german
or consanguinean, the problem will work out thus:
Husband i/ a = s/ 6 reduced to 3 / 9 = '/:*
Mother V 6 Vo
Brothers and sisters uterine. . . '/ 3 = 2 / 6 2 / 9
Sister german or consanguinean */ 2 = 3 / 6 3 / 9 = } / 3
~~%,
Where there are two or more sisters german or consan-
guinean the common base will be 10.
85
265. If there remain only a sister or sisters, ger-
man or consanguinean, (in the case supposed above),
it will be merely a case for the application of Reduction.
266. If there be only one brother uterine, or one
sister uterine, the case of Participation will not occur ;
but the residue will go to the brothers, or brothers
and sisters: but if there be only sisters german or
consanguinean, it will be a case for the application
of Reduction.
267. A brother consanguinean is like a brother
german, in the absence of a brother german, except
in the case of Participation.
NEPHEWS.
268. A nephew, (brother's son) is like a brother,
in the absence of a brother; this holds good whether
they (brother and nephew) be german or consanguinean.
269. The son of a brother uterine is never an heir.
266. The student has only to work out the fractions in-
volved, to realise the accuracy of the results here stutr.l.
267. Cf. above, rule 264, note.
268. This is an instance of assimilation: see Appendix I.
The assimilation is, however, by no means complete:
nephew, unlike a brother, will not agnatise his sist. i
unlike a brother, he will be excluded by a grundfathrr
two nephews will not lower the mcrther's share, though two
brothers will have that effect, see rule 230; (4) a nephew will
not create the case of al-mushtarakah, see rule 963 ami
App. M.
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270. Because the nephew is in a lower degree; and degree
comes before blood. See al-Jabari's rule, Appendix L.
87
PREFERENCE OF PULL BLOOD OVER
HALF BLOOD.
270. A brother german will exclude a brother
consanguinean ; but a brother consanguinean will have
the preference over the sou of a brother german.
271. The son of a brother german will have the
preference over the son of a brother consanguinean.
272. The son of a brother consanguinean excludes
an uncle german.
273. An uncle german will exclude an uncle con-
sanguinean.
274. An uncle consanguinean will exclude the son
of an uncle german.
275. The son of an uncle german will exclude the
son of an uncle consanguinean.
EXCLUSION OP HEIRS.
276. The nearer agnate is preferred to the more
remote.
277. Sisters' sons will not succeed in any case;
nor sons of daughters ; nor the daughters of a brother,
of whatever blood; nor the daughters of an uncle;
nor the maternal grandfather; nor a father's brother
uterine; nor a Muslim, in the succession of a non-
Muslim; nor a non-Muslim in the succession of a
Muslim; nor the son of a brother uterine; nor a
maternal grandfather; nor the mother of a maternal
grandfather.
271 276. These are various applications of al-Jabari's rule :
see Appendix L.
277. The Malikl school differs from that of Abu Hanitali
and al-Shafi'l in not granting the position of heirs umlrr any
circumstances to relatives other than the sharers and ajm
88
3 1 jjpi
The rules relating to the succession of the "distant kindred"
(dh a w l-1-arham) and the doctrine of Return, which con-
siderably complicate the other systems referred to, need not
therefore be dealt with here. On failure of agnates or sharers
whose combined fractions absorb the whole inheritance, the
estate or residue will, in countries where the Maliki rite
prevails, pass to the bayt-al-mal or public treasury.
278. The rule might be stated more concisely : a grand-
mother will not succeed along with her son. The principle
involved is a general one: any heir related to the deceased
through an intermediary is excluded by that intermediary,
if alive and able to inherit, thus a grandson is excluded
by his father, where the latter is alive; and in like manner
a grandfather by a father. For an exception in the case of
brothers uterine, see App. M.
280 283. Applications of al-Jabari's rule : see App. L.
283. There is a hadlth: "The murderer shall have no right
of succession", i. e., he may not succeed to his victim. This
89
278. The mother of the father's father cannot suc-
ceed along with her son, i.e. the father of the deceased.
279. Brothers uterine will not succeed along with
the paternal grandfather; nor along with a child of
the deceased, or a child's child, male or female.
280. Brothers, of whatever blood, cannot succeed
in competition with the father.
281. An uncle cannot compete with the grandfather.
282. A brother's son cannot compete with the
grandfather.
283. A murderer shall not inherit; but a person
who has unintentionally committed manslaughter is
not debarred.
284. Those who in a particular case do not succeed
themselves, cannot exclude others.
is an example of an impediment (JU) existing to prpv.-nt
succession by a person who is in the position of an heir: an
heir so excluded is considered as non-existent, and can theiv-
fore never exclude another heir or diminish the share to
which he is entitled. Cf. rule 284, note, and App. N.
284. An heir himself entirely excluded by another. ran
never entirely exclude a third heir; but he may IMH-
diminution of his share. For example, the existence of broth. -r>
of the deceased will reduce the mother's share to '/ ('* -
though they themselves may be excluded by the father. Again,
suppose the deceased leaves a grandfather, a brother german
and a brother consanguinean: the brother german will e\<-lu<le
the brother consanguinean (r. 270): nevertheless the existence
of the latter will occasion a tripartite division of the in-
heritance, of which the grandfather will receive one-third,
and the brother german the remaining two-thirds: see rule
301. For apparent exceptions to this rule. (i.e. install. -
which an excluded heir would seem to entirely exclude nil,, -r- 1
and an explanation of the true light in which t. r. .
them, see Appendix N.
90
1 g Vif> BiAl>f_3 iC_SLL auJ'L -! ^j5UaJf ^_Q it-. fj
c>otf Lo L_
cr -5
285. Cf? above, rules 6164, 167; and below, rule 288.
286. Cf. above, rule 64. The woman will succeed des-
pite her marriage to another man during the interval. The
husband will have no right of succession in case of survivor-
ship, where the wife's death is posterior to the expiry of
91
REPUDIATION, EFFECT OF
285. A woman triply repudiated during the last
illness of the deceased, has a right of succession to
her husband; he, however, will have no right of
succession to her.
286. If the repudiation was a single one, and the
man died of the same illness after the expiry of her
retreat, the result will be the same.
287. If a man in good health repudiates his wife
by a single repudiation, they inherit from each other
so long as she is in retreat : but if her retreat has
expired, there is no succession thereafter.
MARRIAGE DURING ILLNESS.
288. When a man marries a woman during his
last illness, she will not inherit from him; nor he
from her.
GRANDMOTHERS.
289. The share of a maternal grandmother is a
sixth; so also that of a paternal grandmother.
290. If the two are both in existence, they divide the
sixth between them; unless where the maternal grand-
mother is nearer in degree, for in that case her right
is the better, because there is a tradition in her favour.
the 'id dan: where she dies before its expiry, however, In'
will succeed.
288. Cf. above rules, 61 64. Even the consent of the man-
heirs will not validate such a marriage.
289. By assimilation to a mother: see appendices F. II.
290. "Because there is a tradition in her fa vour" : referring
to a report that the Prophet gave her a sixth. The Culij'li
'Umar is said to have first given ajshare to the paternal
grandmother, relying on analogy
92
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jUi is o^l Iv3f J^Ji viI^yc 3 .Hf
292. In other words, the grandmothers entitled to succeed
according to the rules of the Malik! school are: (1) those
related to the deceased through an unbroken line of females ;
(2) the paternal grandmother, her mother, maternal grand-
mother, and other ascendants through females: all others are
excluded.
93
291. If the paternal grandmother be the nearer, the
sixth is divided equally between them.
292. According to Malik, not more than two grand-
mothers can succeed; viz., the father's mother, and
the mother's mother, and the mothers of these two.
293. It is reported with regard to Zayd b. Thabit
that he attributed rights of succession to three grand-
mothers: that is to say, one on the mother's side;
two on the father's side, viz., the father's mother, and
the mother of the father's father. But no decision by
the Caliphs is reported giving the inheritance to more
than two grandmothers.
GRANDFATHERS.
294. The grandfather, when alone, will be entitled
to take the whole estate.
295. When he succeeds along with a male child,
or a male child's child, his share is a sixth.
296. If there are along with him any sharers
(other than the brothers and sisters) let a sixth be
assigned to him ; if any residue remains he is entitled
to it.
293. Zayd b. Thabit, a companion of the Prophet, born !."
years before the Hijrah; died 45, or according to other account -
54 or 55 A.H. He was one of the "Seven jurisconsult
Medina," and reputed to be specially learned in the law of
succession.
294299. See Appendix 0.
94
301. In a competition with the grandfather, brothers con-
sanguinean rank the same as brothers german as against
the former, but not as against the latter: that is to say,
they will be included in the computation where the result
will be to diminish the grandfather's share : but the benefit
of this diminution will inure exclusively to the brother or
brothers german, or sister or sisters german, where there
are such, by virtue of the rule that the half-blood is excluded
by the full-blood.
95
297. If there be, besides sharers, brothers of the
deceased, the grandfather is given the option of three
things, and will take whichever is most advantageous
for him: the three are (1) an equal share along with
the brothers, (2) a sixth of the whole estate, (3) or
a third of the remainder.
298. It the grandfather succeeds along with brothers
merely, he will divide the estate with them, provided
that there are not more than one or two brothers, or
(what is equivalent) four sisters.
299. If there are more brothers than two, he is
entitled to the third; therefore he will inherit the
third along with the brothers (i. e. the brothers taking
the remainder) unless division be more advantageous
to him.
300. Brothers consanguinean, will, in the absence
of brothers german, be in the position of the latter
as regards competition with the grandfather.
301. If there are both brothers german and brothers
consanguinean, the former are entitled to reckon the
latter in the computation, so as to diminish the grand-
father's share: they will, nevertheless exclude the
brothers consanguinean.
302. An exception, however, occurs where there is
along with the grandfather a sister (but no brother)
german, along with a brother consanguinean or sisters
consanguinean, or a brother and a sister consanguinean :
in such a case she will take her half (i. e., of the
whole succession out of what is obtained on division,
and the remainder will go to the brothers and sisters
consanguinean.
302. See Appendix P.
96
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303. See below, rule 306 and Appendix Q.
304. Cf. above rule 277. The only dha wl-1-arham or
maternal relatives mentioned in the Kur-an are brothers and
sisters uterine.
97
303. The sisters will not be aggrandised at the
expense of the grandfather, but will succeed along
with him as agnates: except in the case of a 1-Gh a r r a'
("Brilliant") mentioned below.
OTHER MATERNAL RELATIVES DEBARRED.
304. No maternal relative can succeed except those
who are assigned a share in the Kur-an.
REDUCTION.
305. When several heirs assigned shares in the
Kur-an occur together, so as that the entire property
is exceeded, then all the shares are subjected to dimi-
nution; so that the estate may still be divided in
proportion to their shares.
306. Eeduction is not re'sojted to in the case of
the sister succeeding along with the grandfather except
in the case of al-Gharra': viz., where a woman leaves
a husband, a mother, a sister german or consanguinean
and a grandfather. The husband will receive a half;
the mother, a third; the grandfather a sixth; the
property being thus exhausted, reduction will be
applied for the benefit of the sister, whose share will
thus be reduced from a half to three shares (i. e.
three-ninths); this being added to the share of the
grandfather, the sum is divided between these t\\<:
she receiving one-third; the grandfather, two-thirds.
Thus the problem involves twenty-seven shares.
305. For an account of the process of reduction
to, see Appendix C.
306. See Appendix Q.
APPENDIX A.
184. Muslim procedure. The student will do well to make
himself acquainted at the outset with the leading principles
of Muslim procedure : since he will find, when he comes to
read any of the standard commentaries, that the whole fabric
of the law consists largely of provisions which have grown
out of the application of those principles, with necessary
modifications more or less important in character, to each
particular relation dealt with. It must further be realised at
once that Muslim procedure is a thing by itself, entirely
different from that followed under any modern European
legal system : it has more analogy probably with mediaeval
European methods, but upon that subject we cannot enter
here. Perhaps we can best give a general idea of its nature
by describing it as a self-acting system: that is to say, it
aims at being automatic, in the sense of leaving as little as
possible uncertain or subject merely to the discretion of the
judge. For this purpose it goes into the most minute details:
specifying exactly what amount of evidence is requisite in each
particular case; describing how divergent evidence is to be
reconciled; directing which side is to be preferred where the
testimony is conflicting ; fixing the initial presumptions arising
from the nature of the claim, and a multiplicity of further
presumptions connected with the details of the evidence. All
this network of rules arid presumptions is binding on the
judge: it forms at once a check upon the arbitrary exercise
of individual judgment, and a ground for disclaiming personal
responsibility and escaping odium: it is not he, the judge,
who decides the case; the rules of law provide for every
detail, and it is merely his duty to refer to those rules. Such,
so far as it can be expressed in a few words, is the principle
of the system.
Cases brought before the Cadi may be divided into two
classes: (1) cases in which the claimant admits his inability
to offer testimony in proof of his contention, or in which he
renounces the right to do so ; (2) cases in which the claimant
offers such testimony. In rules 184 192 our author deals first
with cases of the former kind, and we shall follow the same
order.
99
1. Cases in which evidence is lacking etc. An all-important
point at the outset is to determine on which of tin- t\v..
parties lies the burden of the proof. In Muslim prnn-.liuv
this will not necessarily be the claimant; and it is nec-
for the student to bear in mind that the terms "plaint ill
and "defendant", by which we have translated ej^Jf anil
are misleading in this respect. Besides the tradi-
tional utterance of the Prophet forming the rule (r. 184),
many definitions have been offerred by the jurists to >\\
tinguish the mudda c i from the mudda'a* c alay-hi. That mentioned
in the extract from al-Sharnubf s commentary, is one of the
best known: (a) "the mudda c l is he who says l it was\ ami
"the mudda c a c alay-hi is he who says 'it was not 1 " Another
coming closer to the view which naturally presents itself to
a European lawyer is: (b) "the party suing is the mudda%
"and the party sued is the mudda c a c alay-hi." (^ ^J^L
^ ^j CL\-O). Both these definitions,
however, break down or become uncertain in application in
certain instances, and the only one entirely reliable is: (c)
"the mudda c l is he whose averment lacks both any ordinary
"and any special presumption in favour of its truth: and tin-
w mudda c a c alay-hi is he whose averment is supported by one
"or other of those presumptions":
_jl Joo Lcl %S Juoc Jo). These term-
as 1 and c urf which we have translated or-liiim-i/ ami >//'<////
presumptions, are of much importance, and somewhat dit'lini It
to grasp. The idea involved in a si, may perhaps be m.M
simply expressed by saying that it represents the normal <r
ordinary or fundamental position of matters as hftunMi tin-
parties; c urf or ma c hud c urfan on the other lian-l. repre-
sents any special circumstance connected with i-ithrr p.u-t\
or both, or with the article etc. forming the subject of th.-ir
dispute. Thus, for example where one man claims a dfl.i
from another, who denies any obligation whatsoever: or where
one man claims to be the owner of a certain individual, who,
on the other hand, declares himself to be a free man: in
either case, the one making the claim is the mudda c l, and
100
the one resisting it is the mudda c a c alay-hi; because the asl
or normal relation, in the one case, is the absence of liability.,
and in the other natural freedom. So if the claimant brings
evidence in support of his claim, well and good; but if not,
the defendant on taking an oath to the truth of his decla-
rations will be discharged. That is an example of asl: one
of c urf may also be given. Suppose husband and wife have
a dispute as to the ownership of the furniture in a house
occupied by them: in such a case, if the woman claims, for
example, a spinning wheel or something generally used by
and intended for women, she will be the defendant, in as
much as the c urf or special destination of the article testifies
in her favour. Yet another example may be given of a more
special nature. Suppose a minor on attaining puberty sues
his guardian for delivery of his property; the guardian avers
that he has already delivered it; the ward denies the fact:
in such a case the asl is held to be in compliance with what
the law requires, viz., that a guardian when handing over to
his wards their property, should call witnesses as directed
in the Kur-an: (cf. rule 213). He is therefore mudda c a c alay-hi :
yet it will be observed, that according to definition (a) and
definition (b) the result should be the opposite: since it is
the guardian who says it was and the ward who says it ivas
not\ and again, it is the minor who sues, and the guardian
who is sued.
"When the doctor knows the complaint from which the
"patient is suffering, he can tell at once what medicine is
"appropriate for such a case; so he who knows the muddal
"from the mudda c a c alay-hi, knows the general bearing of the
"case:" such is the manner in which the jurists illustrate
the importance of this initial distinction. What, then, is the
next step? The mudda c l is unable to bring evidence or re-
nounces his right to do so: is the matter at once to be
referred to the oath of the mudda c a c alay-hi as rule 174 might
seem to indicate? No. Before the mudda c a c alay-hi can be
called upon to do this, it is necessary for the mudda c l to
bring some commencement or adminicle of proof against him,
by showing that there have been business relations existing
between the two (see rule 185) : for example, that the one
has borrowed from, or lent to the other; unless indeed there
be something in the occupation, antecedents etc. of the
mudda c a c alay-hi, or certain other special circumstances, to
render such a commencement of proof unnecessary. Suppose,
then, that this requirement is complied with, the mudda c a
c alay-hi now has the matter referred to his oath: that is to
101
say he is called upon to swear in a solemn manner in th.-
Mosque etc., (IT. 187190) that he owes the claimant not]
On his doing this, judgment will be given in his rav.ni.
if, on the other hand, when thus brought to the test, h.-
admits liability, the case will terminate in judgment agam-t
him. But suppose he declines to swear: does this at once
decide the matter in favour of the mudda'I ? No, it is neces-
sary that the mudda'I in his turn should take the oath, and
it is only on doing so that judgment will be given in his
favour: see rule 186. When the mudda c a c alay-hi has allow, I
matters to go this length, expressly stating, tt l will nut
swear", or saying to the mudda'I, "Swear you and take pos-
session" (J^>_j v^oi v-ak>f), he cannot subsequently reinstat.-
himself in his former position by offering to bring evidence;
unless indeed in a case where he can plead ignorance of tin-
existence of such evidence in excuse of his conduct: see nih-<
191, 192.
2. Cases in which evidence is tendered. What number ami
what character of witnesses does the law require? Thi<
depends on the nature of the case, (a) To prove a charge of
adultery etc., no less than four male witnesses will be n-
sary: (b) in questions of personal status etc., as distinguished
from questions of property, two male witnesses are neces-
(c) in questions relating to property, the evidence of one man
and two women, or one man and the claimant's oath, or two
women and the claimant's oath, will suffice: (d) in mati.-r-
of which women alone are cognisant, e.g. childbirth* -t.-.,
two women will be received: (e) written evidence will In-
admitted on proof of authenticity by the testimony of tw .
male witnesses: (f) evidence of common report will he ac-
cepted in support of long continued possession, marria-. 1 or
its dissolution, disputes between spouses, gifts and s..n_ tin-l-
eases (g) hearsay or reported evidence will he admitted in
the case of deponents at a distance under certain conditions:
(h) the evidence of minors will be accepted in the
number of boys being together, and one of them being
drowned etc. where no male adult evidence is available
rule 212.
Contradictory evidence. Testimonies offered on the one side
and on the other, are to be reconciled so far as possible
where this cannot be done, evidence establishing tl nirni
of the ownership will be preferred. The reputation of wit
nesses is to be considered, rather than their number: the
evidence of two men is better than that of one man and
two women, and the latter again is to be preferred to the
evidence of one man coupled with the oath of the claimant.
Possession is a ground of preference when corroborated by
oath ; but it may be overcome by proof of title : the possession
must have endured for ten months, and have been peaceable
and uninterrupted.
Admission, discrediting etc. of Witnesses. There is one
respect in which the Cadi exercises more important powers
than any European judge. Only individuals personally known
to him as being c adl, i. e. honourable and observant of
their religious duties, are to be admitted to give evidence.
The reason of this peculiar rule is the dignity and quasi-
religious character which Muslim law assigns to the role of
witness. The testimony of a man who is not c a die. g. one
who is irreligious, a drinker of wine, a non-Muslim etc.,
cannot be admitted under any circumstances : the Cadi cannot
accept his declaration, we are told, "even though he knows
"that he is speaking the truth." On the other hand, the Cadi
may not reject the testimony of a witness who is c adl,
"even if his evidence is contrary to what the Cadi himself
"knows to be the case:" (see Tuhfat-al-Hukkam, edition by
Houdas and Martel, verses 45, 47). The Cadi is to judge of
the credibility of witnesses out of his personal knowledge, or
what he may ascertain with regard to them by means of
secret inquiry. When in doubt, he will abstain from giving
any decision.
Such a system, however objectionable to European ideas,
on the ground of being inquisitorial and mechanical at once,
is perfectly capable of being acted upon in a small and more
or less permanent community. But what is to be done in a
populous city or in a place where strangers from a distance
are constantly coming and going? Obviously the rule as to
witnesses being personally known to the Cadi must be relaxed
in some way; and accordingly we find the rules of law
providing for the accrediting of witnesses who have not, by
the testimony of two or more who have, the necessary quali-
fication of being personally known to the Cadi: see rules
209 211. The accrediting testimony takes the form of a
declaration that the person in question is "honourable and
acceptable" ( c adlun ridan) : the process of accrediting thus
comes to be known as ta c d!l.
But if testimony be thus received to habilitate a witness
whom it is desired to have admitted, it is a natural conse-
103
quence that testimony must also be admitted to impugn tin-
character of persons who might otherwise be received. Tin-
is the converse process and is known as tajrlh: after tin-
Cadi has accepted evidence on the one side, it i> hi- duty
to call upon the other side to bring testimony, (it th.-\
in a position to do so), to show that the witnesses brought
by the first party are unworthy of credit. A litigation, tl,
fore, may resolve itself into a contest, not so much as to tin-
facts in issue, as to the reputability, religious charade
of the witnesses on either side. Living with a son who drink-
wine, illicit relations with women, inattention while ga
prayers, non-performance of ablutions, trafficking in nm-iral
instruments, putting his father to his oath in a litigation:
such are few of the grounds on which the law allows the
testimony of witnesses to be discredited. Enmity to the op-
posite side to that on which the witness is called; suspicion
of a profit to be derived by a witness from his testimony:
too great keenness in offering testimony; the fact of tin-
witness being brought from a great distance; mendicancy;
interest in the success of the party by whom the witn.
called: such are a few more grounds of exclusion lessstr
to European ideas. Where the matter is in doubt, the wit-
ness is to be rejected: that is to say, where the witnr -
for and against his reputability are equal in numbers ami
reputation, the latter will prevail.
But how are these rules to be applied, in the case for
example, of a dispute which has arisen among a caravan of
strangers from a distance? It will commonly be impossible
for such persons to find witnesses of position, personally
known to the Cadi, to testify to their reputability. Tin- law
accordingly tolerates a further departure from the ordinary
rules in such a case: provided that the witnes-'- exterior
testifies in his favour, the Cadi will admit him to -:i\e
evidence, but only in connection with matters between hi-
travelling companions etc. Without this restriction, the liberty
thus given might result in passing strangers being brought
as witnesses in evasion of the ordinay rules.
APPENDIX B.
230a, 2306. Al-Gharra'an. The case dealt with in these
rules are known by the names of al-Gharra'a n or a I-
C U marly atan. They have their origin in the difficulty
found in reconciling a general rule deduced from the Knr-nn
104
(viz: that a male heir shall receive a share equal to that
of two female heirs) and a specific direction therein (Surah
IV, verse 12) that where the deceased leaves no children,
but his ascendants inherit, the mother shall have a third.
First case of al-Gharra'an. Suppose a man dies leaving
a wife, a mother and a father : by the ordinary rules the widow
would take one-quarter, the mother one-third, and the father
the remainder, that is to say 5 /i2 as compared with the
widow's 4 / 12 .
But by the rule, that a male is entitled to double the
share of a female, he should receive 8 / 12 . The distribution is
re-adjusted, therefore, by the mother being given one-third
of the remainder, after payment of the widow's share, instead
of one-third of the whole inheritance: and the portions will
then work out as follows:
Widow . . . . 1/4
Mother .... V 3 of remainder = 1/3 X 3 / 4 = i/ 4
Father .... the remainder = 1 (i/ 4 -f- V-t) = V-2
Second case of al-Gharra'an. Suppose the deceased,
being a woman, leaves a husband, a father and a mother:
according to the ordinary principles of distribution, the hus-
band would receive one-half, and the mother one-third of
the whole inheritance: so that all that would remain to the
father would be one-sixth. He would therefore have merely
half what the mother received.
To avoid this result, the mother is again given, not one-
third of the whole, but merely one-third of what is left after
payment of the husband's share. Accordingly the distribution
will work out as follows:
Husband . . . '/2 of the whole.
Mother . . . '/ 3 of the remainder = */ 3 X '/a = Vo
Father . . . the remainder 1 (>/ 2 + V) " 2 /e = Va
It is necessary to distinguish between these two cases
known al-Gharra'an and the case known as al-Gharra' ex-
plained in Appendix Q.
APPENDIX C.
221. "A third", a sixth". "Each of his parents shall, have
a sixth, if he leaves a child: if he leaves no child his
ascendants succeed, his mother shall have a third; if he
leaves brothers, the mother shall have a sixth". Kur-an IV, 12.
"Reduction". When the deceased leaves several near relatives,
it may occur that the sum total of the various fractions
105
falling to the sharers exceeds unity. Suppose, fur
the heirs are a mother, a sister german or CO
and a husband: their shares will be respectively a third, a half
and a half, making in all %, or an improper fraction. How
is the estate to be distributed? The question perplexed lin-
early jurists considerably, but the process ultimately adopt.-d
consisted in bringing all the fractions to terms of on.-
common denominator, and then augmenting that denominator
in every case by such a number (one, two, three or r\.-n
five) as will make it equal to the sum of all the numeral >i -.
Example 1. In the case supposed above, the reduction will
be as follows:
Mother >/3 = %
Husband V-2 = 3 /o
Sister german V-2 = 3 /e
The sum of these fractions, ( 2 / 6 -f 3 / 6 + 3 / 6 ) is 8 / ; add two to
the denominator, and the fraction becomes % = unity.
The fractions in terms of the new denominator will be :
Mother . . . 2 / 6 reduced to 2 / 8
Sister german % 3 / 8
Husband . . 3 / 6 3 / 8
8 / 8 = unity.
Example 2. Suppose the deceased, a female, leaves a Im
band, a mother, a sister german, a sister consanguinean, a
sister uterine : the distribution will be as follows :
Husband Va = 3 /c reduced to 3 / 9
Mother i/o f /
Sister german . . . V-2 - 3/0 B 3 /9
consanguinean '/o )} V
uterine . . . '/c }> * */9
"/9~= unity.
"Brethren whatever they are": i. e. brothers or ristflCT
whether german, consanguinean or uterine, and even though
themselves excluded by the grandfather.
APPENDIX D.
232. Sharers and Agnates. Heirs are of two kind-:
Sharers, entitled to a fixed share specified in tin- K"
(b) Agnates or residuaries, whose share is not so determuu
The common rule is that the sharers are to be satisfied IHM.
and the remainder will then fall to the airnat.-<: but .
plications arise owing to certain heirs occupying a rai
106
position between the two classes. The father is an extreme
example of this nature : he will inherit :
(1) as a sharer only, where:
the deceased leaves a male descendant; or
on payment of the other sharers merely one-sixth
or less than one-sixth remains : or
(in) nothing remains, and reduction is necessary in order
that he may obtain a share :
(2) as a residuary only, where the deceased leaves no des-
cendants, male or female ;
(3) as both sharer and residuary, where the deceased leaves
female descendants only, and more than one-sixth remains
after payment of the sharers.
APPENDIX E.
235. Son. A son is always an agnate. He excludes all
more remote agnates and can never himself be entirely
excluded from succeeding. The most disadvantageous case
which can occur for him will be to succeed to his mother
where she has left father, mother and husband and many
daughters surviving her; the father would receive '/ 6 , the
mother '/ 6 , the husband ] / 4 , and the remainder of 5 / 12 , would
fall to be divided between the son and daughters in the
proportion of 2:1. Thus, if there are four daughters and one
son, 72 is the lowest denominator which will admit of division
among them in that ratio: and the residue will be 5 / ]2 = 30 / 7 . 2 ,
of which son will receive 10 / 72 or ten shares; each daughter
5 / 12 or five shares.
APPENDIX F.
237. Assimilation of descendants etc. It is a general prin-
ciple running through the law that descendants come in the
place of ascendants et vice versa : numerous exceptions, however,
exist. A grandson, for example, is in a less favourable position
than a son, inasmuch as (unlike the former) he may be en-
tirely excluded by a combination of other heirs. Thus, sup-
pose the deceased leaves two daughters, a father, a mother
and a grandson : the two daughters (not being agnatised by
a grandson, though they would be so by a son, see rule 238)
will receive 2 / 3 ; the father will be entitled to '/<$; the mother
to Vp; an( l the estate being thus exhausted the grandson will
receive nothing.
107
APPENDIX G.
238. Agnatisation of female heirs. The ratio 2 : 1 as between
males and females is another general principle in sin,,
cf. above rules 226, 228, where it will be seen that tin-
husband's share in his wife's estate is double that t.. whirh
she will be entitled on survivorship. In the case of suns ami
daughters, it is expressly declared in the Kur-Sn: "God mm-
"mands you in the distribution of your goods among your
"children, to give a son the portion of two childivn." siirah
IV, 12. The direction is the same with regard to broth. -r<
and sisters: "If there are brothers and sisters: |i. e. german
"or consanguinean] each brother shall have a portion equal
"to that of two sisters." Surah IV, 175. (An exception to this
rule occurs, however, in the case of brothers and Bisten
uterine; their right is based on a different verse of the
Kur-an: "If the succession of a man or of a woman is taken
"by relatives other than his father or his son, and the man.
"or the woman, has a brother or a sister [i.e. uterine), each
"of the latter shall have a sixth; if they are more numerous
"they shall share the succession." Surah IV, 15. Thi> ii
construed as referring to brothers and sisters uterine, ami
as indicating an equal division, i.e. a sister to receive the
same as a brother: cf. rules 255 257).
Such a direction seems simple enough in itself: account,
however, has to be taken of the distinction between tin- two
classes of heirs, (a) sharers, and (fr) residmirie- or Bgnatefl
(r. 232, App. D); whence arise various theoretical niceties
which have also practical consequences attached. When a
daughter shares along with sons, or a sister along with
brothers, is she a sharer or a residuary? The Muslim jun-t^
reply, she is a residuary, having been equalised (or, a- they
express it, rendered c asabah by another, _jJu X**-*) ^J tMt '
existence of a male heir of the same class ami decree. This
process of agnatisation plays a considerable part in the law:
other examples of it will be found in rules 246, 247.
and appendices J, K, where it will be seen that tin- agnatfo-
ing heir may be, not merely a brother, hut a n.u-m. a
nephew, grandnephew etc., or even another female heir: the
justification of the wide extension thus given to the direc-
tions of the Kur-an being the pnm-i|le t' a->imilat m- >\<-
cendants referred to in rule 237, Appendix I'. AJ a formula
concisely stating the ordinary (or more restricted) |
agnatisation, the following may be found convenient: *A OM,
108
a grandson, a brother german or a brother consanguinean,
succeeding along ivith one or more female heirs of the same
class, degree and blood, will confer on them the character of
residuaries" For the meaning of class, degree, blood, see
Appendix L : such is the general rule, viz. that there must
be equality in these three respects; an exception is merely
admitted where the female heir would otherwise be without
any share whatever in the succession. See Appendix J.
APPENDIX H.
243. Complement of the two thirds. This rule, in so far as
regards the share awarded to the grand-daughter, results
from (a) the principle of the assimilation of descendants to
ascendants (App. F), and (b) the provisions of the Kur-an
assigning half the succession to one daughter, and two thirds
to two or more daughters (rule 241). Suppose the deceased
leaves a daughter and a grand-daughter: the former is en-
titled to V-2i or Ve l ess than would have gone to her and a
sister, had she had one: (since 2 / 3 t/ 2 = Ye)' this "complement
of the two-thirds" is therefore assigned to the grand-daughter,
as a quasi-daughter, without however reducing in any way
the share of the daughter.
APPENDIX I.
244. Grand-daughters. The meaning is that in the case
dealt with in the preceding rule (r. 243), where there are
(instead of one grand-daughter as there supposed) two or
more grand-daughters, they will share the complement of
the two-thirds (i.e. one-sixth) among them; and the residue
(i. e. one-third) will go to the nearest agnate e. g. the de-
ceased's brother, uncle etc.
APPENDIX J.
246, 247. Agnatisation of grand-daughters. Grand-daughters
will be agnatised by
(a) a brother, the deceased's grandson by the same son as
the grand-daughter:
(b) by a cousin, the deceased's grandson by another son;
(c) by a great-grandson or other descendant of the deceased
109
through males, of a lower degree than her own. i. ,-. ^.
ing to her in the relation of nephew, grand-no phev.
But in this last instance of agnatisation, ( (c) above), >!,.-
will become c asabah only in case she is entitled to noshaiv
- of the sharers: if on the other hand, she recei
as one
**v*} vuv KWO4WB I'M
example, one-sixth as complement of the two-thirds, com in-
to the succession with one daughter only of the deceased,
she will not be agnatised, but will take the one-sixth merely
as a sharer.
APPENDIX K.
250. This is a further kind of agnatisation, viz. one ..r
more females being agnatised, not by the existence of a mule
heir, but by that of another female heir or heir
german or consanguinean will be rendered what is call.-. I
agnates along with others (a) by a daughter or daught.
the deceased; (b) by a grand-daughter or grand-du lighter*
of the deceased: provided that there is no brother <>f the
same strength of blood, by whose existence they would he
rendered agnates through others. The purpose of the agnati-
sation is to avoid injustice to daughters of the deo-a-ed. in
cases where their shares would be reduced by those of the
sisters. Suppose, for example, the deceased leaves two daugh-
ters, and two sisters. The two daughters would be entitled
to two-thirds: the two sisters would also be entitled to i\\-
thirds : this would take make up 4 / 3 , which being in <
of unity, reduction would be necessary: that is to say. i In-
common denominator would be raised from three to four, ami
the daughters' share, instead of 2 / 3 , would become */+ or '/a-
The daughters being entitled to the preference over the
sisters, the above result is obviated by giving tin- former
their full two-thirds, and the remainder to the sifters in
the character of agnates along with others.
APPENDIX L.
251. Al-JabarVs Rule. The exclusion of brothers \>\ un\
male descendant of the deceased, or by a father, i- an in-
stance of harmony between (a) the rules of Arab a:nati.
succession, and (b) those which prevail in European I'-J-M!
systems. There are, however, numerous instanres in \vhirli
the two differ widely. For example, Arab agnatir BUCCC
presents the following peculiarities: (1) no distinction !>rt\\-.-n
I
110
movable and immovable property; (2) no primogeniture; (3)
division of heirs into classes, not on the broad lines of
descendants, ascendants, and collaterals, but on a special six-
fold classification explained below; (4) non-admission of the
principle of representation, and rigid exclusion of more
remote heirs by those nearer in degree; (5) (as another
application of the same principle) distribution per capita,
never per stirpes; (6) preference given to heirs german over
heirs consanguinean.
With reference to (4) non-admission of ^presentation, it is-
necessary that the student should distinguish clearly between
representation (which term we use in the ordinary sense in
which it is employed in Roman or in English law) and the
assimilation of descendants to ascendants described in Append-
ix F. To illustrate the distinction we may take the case of
the Prophet himself. His father, c Abdallah, predeceased his
father, died a poor man before the Prophet (a posthumous
child) was born: but the grandfather c Abd-al-Muttalib, left
considerable property, to a share in which Muhammad would
have been entitled under any European system of inheritance,
as representing his deceased father. By Arab succession law,
however, any claim which he might otherwise have had was
entirely excluded by the fact that his grandfather left other
sons (i. e. uncles of the Prophet) surviving him, who, being
nearer in degree, absolutely debarred grandsons. This exem-
plifies the rule against representation. To illustrate that
in favour of assimilation, it is only necessary to imagine the
case of the grandfather having left no sons surviving him :
in that event the Prophet, a grandson, would have come in
the place of a son, and have received the whole inheritance,,
or an equal share in it along with other grandsons, if there
were any.
The rules according to which, under Muslim law, residuary
or agnatic heirs are preferred one before another, have been
concisely expressed by an Arab writer in a verse which may
be translated :
" Class must in first place be preferred;
Degree comes next, and blood is third".
These terms, "class", "degree" and "blood", require some
explanation.
"Class": agnates are divided into six classes, viz: (1)
descendants through males, son, grandson, great-grandson
etc. : (2) the father : (3) the grandfather and the brothers r
(4) the nephews, brother's sons : (5) the uncles : (6) the patron.
"Degree" means the degree of relationship in which the
Ill
heir stands to the deceased as ascertained by the
of removes: e. g. the son and the father are in th.-
degree, there being no intermediary between them ami th.-
deceased; the grandson, the grandfather ami tin- hr-.ther an-
in the second degree, one intermediary being involve! m
each case; the great-grandson and the nephew an- in th,-
third, etc., etc.
"Blood" means that the heir is either of the full blood, or
the half blood, the former being preferred to the latter: e.g.
a brother german will exclude a brother consanguim-an : the
brother uterine not being an c asabah is not here in question).
The rule, therefore, operates in the following wav:
(1) A, an heir belonging to the first class will exclude B,
an heir of the second or any lower class, notwithstanding
that B may stand in a nearer degree of relationship to the
deceased, and be of the full blood, whereas A is merely <-\
the half blood.
In like manner an heir belonging to the second class, will
exclude an heir belonging to the third class, notwithstan
that the latter may stand in a nearer degree of relationship.
(2) Where two heirs belong to the same class, the one
which stands in a nearer degree of relationship to the deceased
will exclude the other: if they are both in the same degree
they will share equally.
(3) Where two heirs belong to the same class ami stand
in the same degree of relationship to the deceased, the one
which is of the full blood, i.e. related to the deceased lith
through father and mother, will exclude the other, if men-ly
of the half blood, i. e. related to the deceased through the
father only.
Illustrations. (A) The deceased leaves a son and a father:
the son belongs to the first class, and the father t" the
second class, therefore the son is preferred.
(B) The deceased leaves a son and a grandson: l.-.th are
of the first class; but the son is in the HIM decree, ami tin-
grandson in the second degree; therefore the son is preferred.
(C) The deceased leaves an uncle german (brother of the
deceased's father, through both father and mother) ami an
uncle consanguinean (brother of the deceased's father through
the father only): both belong to the same da- ami -tand
in the same degree of relationship to the deceased, but the
uncle german, being of the full blood, is preferred t > tin-
uncle consanguinean, who is of the half blond.
112
APPENDIX M.
255, 256. Brothers and Sisters userine. It is important to
note the wide difference between (a) brothers german and
consanguinean, and (b) brothers uterine. The former succeed
as c asabah or residuaries in accordance with the rules of
pre-Islamic Arab succession : the latter, not being related to
the deceased at all through males, but merely through their
mother, had no right of succession whatever by pre-Islamic
rule, but owe their position as heirs to a verse in the Kur-an :
"if the succession of a man or of a woman is taken by
"relatives other than his father or his son, and the man or
"the woman has a brother or a sister [uterine], each of the
"latter shall have a sixth of the succession: if they are more
"than one, they shall divide a third of the succession". Surah
IV, v. 15. Brothers and sisters uterine occupy an anomalous
position in various ways: for example, (1) brothers and sisters
share alike, contrary to the general rule by which a male
heir receives a portion equal to that of two female heirs,
(see rules 228, 232, 238 and App. G); (2) they may succeed
along with the person through whom they are related to the
deceased, i. e. their mother, contrary to a general rule by
which an intermediate heir when alive, debars those claiming
relationship through him or her (r. 278) ; (3) they reduce the
mother's share from a third to a sixth, (r. 231, App. C)
instead of being excluded by her, in accordance with the
general rule just referred to. Brothers and sisters uterine
being sharers, not residuaries, will never be entitled to more
than a third of the succession : a single brother or a single
sister will be entitled to a sixth ; if there are a brother and
sister, or more than one of either sex, they will divide a
third among them per capita.
The positions of brothers german and brothers uterine being
thus dissimilar, it would seem as if they could never have
anything in common: there is, however, one peculiar case
in which they will be grouped together. The brother german,
though a typical agnate, will succeed in the character of a
sharer, being assimilated to a brother uterine in the case known
as "al-Mushtarakah" or "Participation." This arises in the
following manner. Suppose a woman dies leaving a husband,
a mother, two or more brothers or sisters uterine, and brothers
german: the husband will be entitled to a half; the mother
to one-sixth, and the brothers uterine to one-third; these
shares, '/a + Vo + } lti absorb the whole estate : so that the
113
brothers german in the character of c asabah would n,
nothing. To prevent this anomaly a brother -,-n.i;ui i- ,
this particular case, but in no other, considered u ;i sharer
and admitted to the third of the estate falling to tin- brother*
uterine, along with the latter. The same problem, with th-
same solution, may occur in one or two other way-: a rran.l-
mother, or grandmothers, having also right to a sixth may
take the place of the mother in the instance above ^i\.-n ;
and two sisters uterine may replace the two brothers uterine!
But exceptions being matters of strict law, the privily thai
granted to brothers german will not be extended to ii'p|,,.u*
(r. 268); nor to brothers consanguinean (r. 264); nor to a
brother consanguinean and a sister consanguinean (r. 284,
App. N); while a sister or sisters german or ronsaniriiinean
occurring alone, instead of brothers german would ,-,
their ordinary shares (/ 2 or %) without the necessity ol
exceptional course.
APPENDIX N.
284. Excluded heirs, effect of. An apparent e \cepti >n t
this rule is the case of al-karlb al-masirnm or the
"Unlucky kinsman", as it is commonly called: the title of
unlucky being given to a relative, who, himself reeeivin.
share of the inheritance, has yet the effect of (li>privin_.
the fact of his existence, another relative of a share to which
she would be entitled.
Suppose, for example, that the deceased, a 1'emale. learefl
a husband, a mother, a father, a daughter, a irraiid-on, and
a grand-daughter: the husband will have V 4 ; tin- mot her '/:
the father Ye; the daughter '/ 2 ; an( l but for the .-MM-MI
the grandson, the grand-daughter would also ivcri\e
complement of the two-third*. The existence ( .f the ^ran
however, renders her c asabah: and as the sum of the share-
falling to the other heirs, viz. '/* + Ve + Ve + Va * "/la- rv
unity, there will be nothing for her to receive in the ,-liai-
of c asabah. The grandson has thus excluded her without
benefitting himself.
Another example, which approaches, without constituting
the case of al-mushtarakah, may be given afl ezemplil
at once the strictness of the law with regard to that .-\
tional case (App. M), and the working of the -I'nlucky
kinsman" in contrast thereto. Suppose a woman leaves a
husband, a mother, a brother uterine, a -i<t.-r
114
sister consanguinean and a brother consanguinean. The dis-
tribution will be
Husband . . . i/ 2 = 3 / 6 reduced to 3 / 8
Mother. . . . i/e Va
Brother uterine >/ 6 %
Sister german . J /. 2 = 3 / 6 3 / 8
8 /8
But for the existence of the brother consanguinean, the
sister consanguinean would have been entitled to the "com-
plement of the two-thirds" in the character of a sharer
(r. 253); but being agnatised by the existence of a male of
the same class, degree and blood (r. 249), she falls to be
dealt with as a residuary: that is to say, all she can claim
is an equal share in the residue, and the whole estate being
exhausted by the shares, there is no residue available.
The "unlucky kinsman", it may be noted in passing, is
always in the same degree as the kinswoman whom he ex-
cludes; for example, a brother of the sister or grand-daughter
excluded; or in the case of a grand-daughter, he may also
be a cousin.
These cases of the "unlucky kinsman", however, it may
be said, are really distinguishable from cases of exclusion
proper, or of reduction, by an excluded heir (r. 284, note) :
since the exclusion operated by the "unlucky kinsman" is, as
it were, merely an exclusion de facto, the female relative
excluded being still de jure an heir; only her heirship is of
no advantage to her, owing to the absorption of the whole
succession by the shares. Exclusion proper, on the other hand,
or the diminution of an heirs share, means something more
than this: it implies an extinction or modification of the right
of the heir affected, apart from any questions as to compe-
tition with other heirs. Contrast the case of a person under
impediment (*jL>) 5 whose existence can in no case affect the
right of another (rule 283, note).
APPENDIX 0.
294 299. Competition between grandfather and brothers
and sisters. The father if alive, excludes the grandfather: but
where there is no father living, the grandfather enjoys in
general the same right as a father would have enjoyed: taking,
for example, one-sixth of the inheritance in the character of
a sharer, where there are one or more male descendants of
115
the deceased (r. 233); and the residue, (if any), att.-r |.;i\ m.-nt
of the other shares, in the character of c asabah. where the
deceased has left only female descendants ornodescendan
either sex (r. 234).
Differences, however, between the rights of a grandfather
and those which would have been accorded to a lather in the
same circumstances, arise, when the grandfather h.i- fur
competitors in the inheritance brothers german or con
guinean of the deceased. These stand to the deceased in th,-
same degree of relationship as the grandfather, \i/.. in tin-
second degree: but the grandfather belonging to the la
of ascendants, the brothers to that of collaterals, the grand-
father would naturally be preferred and exclude the brother-.
Against this, however, there is the fact that the grandfather,
unlike the father, is not an intermediary connecting tin-
brothers with the deceased, and so entitled to exclude them.
Accordingly, as the most equitable solution of the ilillirulty.
the jurists have grouped the grandfather and the brother-
together, as constituting the third class of 'asabah and
dividing the residue among them per capita, subject to cer-
tain special rules.
The grandfather is conclusively presumed to choose in r\ en-
case, the share or portion falling to him whether as -barer or
residuary, which will be largest in amount in the particular
circumstances of the case; as those circumstances ma\
greatly, the determination of his rights is a matter of some
intricacy.
Thus, for example, his choice will vary according as (a)
there are other sharers besides himself and the hrothe:
(b) there are no sharers. Again, the number of the brother-
may make it to his interest either (1) to share along with
them, or (2) to take such portion of the inheritance U he
may be entitled to in the character of sharer.
VVhere there are no other sharers besides the brother! and
himself, the grandfather is allowed one-third of the v
inheritance in his character of sharer. If, however, it i-
for his advantage to divide the estate equally al-mi: wit!
the brothers and sisters, he will do so. For example, it
deceased leave three or more brothers it will be t . In-
terest to take one-third as sharer; since as a rendoaiT, fa
would merely receive one-fourth or less. On the other
if the deceased leaves less than two brother-, i.
or one brother and a sister two sisters count
brother it will be to his interest to take hi- |><>n
a residuary. If the deceased leaves merely a -randtath
116
one sister, it will be still more to the interest of the grand-
father to take in the character of a residuary, since as such,
he will be entitled to two-thirds of the inheritance ; where
there are two sisters, the grandfather will have a half. Where
there are three sisters, or a brother and a sister, the grand-
father will have two-fifths of the inheritance. Where the
result would be the same, in whichever character he takes,
e. g. where there are two brothers or a brother and two
sisters or four sisters, he is doomed to take in his character
of sharer.
Where there are other sharers, the grandfather will still
take in the character which is most to his advantage ; and
accordingly he may either divide, equally with the brothers
and sisters, the residue of the estate after payment of the
other shares; or if his portion in this way would be less
than one-third of the residue, he is entitled to take a third
of the residue as a sharer (just as where there were no
other sharers, he was entitled to take a third of the whole
inheritance). In no case can he receive less than one-sixth
of the whole inheritance, and this fraction it will be his
interest to take in his character of sharer, where his portion
as c asabah, and also the one-third of the residue mentioned
above, would be less than a sixth of the whole estate.
APPENDIX P.
302. Sister german and brother consanguinean. A. grand-
father succeeding along with sisters german or consanguinean,
in the absence of brothers, will render them c asabah as
the existence of a brother would have done: and will then,
(like a brother), share with them in the ratio of two to one :
but (unlike a brother), the grandfather, even along with the
sister, will not reduce the mother's share to one-sixth. Sisters
german, like brothers german, may include any brothers
consanguinean which there may be in order to reduce the
grandfather's position (IT. 284, 301): but unlike a brother ger-
man, a single sister german will not always derive the entire
benefit arising from their inclusion. It may occur that what
remains after satisfaction of the grandfather and the other
sharer, exceeds one-half of the whole succession ; in this case
the sister will receive merely her half as sharer, and the
remainder will go to the brothers consanguinean ; e. g. suppose
the deceased leaves a grandmother, a grandfather, and a brother
consanguinean and a sister consanguinean: the grandmother
117
is entitled to i/ fi , the grandfather taking /a X / 6 = /i 8 , f
will remain / 18 : of this the sister will take /,..
half of the whole succession; and the remainder / lg will go
to the brother consanguinean.
APPENDIX Q.
306. Al-Gharra'. The limitation of tin- sister to om--halt of
the whole, referred to in the note to nil.- :;<>_'.
indicate that her right of succession in those cases i< in tin-
character of sharer, rather than in thatof c asa huh : on the ..th.-r
hand, she can never claim the benefit of a retlm-Umi, in
the fraction falling to her after satisfaction of the grandfather
and other sharers, falls below one-half: this would seem to in-
dicate that she is not properly a sharer, but omipiex a -<>rt of
intermediate position. An example of the disadvantage under
which she suffers in thus being debarred from the hen. -lit <.t
reduction may be given: Suppose the deceased leaves a grand-
father, a sister german and two brothers consanguinean: the
husband will receive '/a I the grandfather Ya of the remainder
= Yr> of the whole; therefore merely Ye will be loft for the
sister german, as compared with '/2 to which she would he
entitled as a sharer. A reduction would give her 3 / 7 , being %,
more than she actually receives. Or suppose the dec.
leaves a widower, a grandfather, two sisters germun and two
or more brothers consanguinean: the widower will re.-ei .
the grandfather, Ya of the remainder = Ye of the whole; thn<
leaving merely '/a f r the sisters german, a^ compared with
2 /3 which they would be entitled to as sharers, and 4 /s = Vt
which they would receive were a reduction allowed.
There is, however, an exceptional case here referred t .1-
al-Gharra' (otherwise known as a I-A k d a r 1 y a In. in which
the sister will be granted the benefit of a reduction,
where she comes to the succession along with the grandfather,
the widower and the mother. The reason fur allo\\mu r the
exception is the hardship which would otherwise I..- entailed
on her; since, the widower taking '/., the mother ' ,. and
the grandfather % as his minimum share .\pp. ">. tin-
sister german would receive nothing. To avoid \\\\< tin- cal-
culation is made on the basis of her being entitled to /.
the character of sharer, and on the application of reduction
the result is as follows:
Widower . . '/a = 3 /r, reduced to 3 / 9 Vti
Mother . . >/3 = 2 /c 2 /9 */ti
118
Sister german '/a f remainder '/? X 4 /o 4 /27
Grandfather . a/ 3 2/3 X % 8 / 2 i
This case is exceptional also as a departure from the rule
that the grandfather is entitled to his minimnm share of
one-sixth under any circumstances, to the exclusion of the
sister german.
The student is warned against confusing this case of al-
Gharra' with the two cases known as al-Gharra'an mentioned
in Appendix B.
INDEX.
The numbers refer to rules.
Affinity, meaning of, 29 note.
Agnates, see c Asabah.
Agnatisation, 238, 244247, 249, 250, 254, Appendices G, J.
Apostasy, 49.
c Asabah, 232, 235, Appendices D, E. See also Introduction | T .
XII XIII.
Ascendants, representation of, 237, 243, Appendices F. II.
Asl, App. A.
Assimilation of ascendants, etc., 237, 240, 242, 243, 208, 289,
294, Appendices F, H. 0.
Assimilation, injurious; see Injurious assimilation.
Bayt-al-mal 277 note.
Blood, full and half, 251, 270275, App. L.
Burial of wives, 156158.
Cadi, see App. A.
Charitable donations, 165 183.
Class 251, App. L.
Consanguinity, meaning of, 29 note.
Constraint, right of, 4 15.
Continence, vow of, 104, 105.
Consent of bride, 4, 5, 6, 7, 8.
Conversion, effects of, on marriage, 50 55.
Custody of children, 148150.
Daughter's share, 241247, 250.
Debts of deceased, 221, 222.
Defendant, 184186, 191, App. A.
Degrees, forbidden, 29, 38, 40.
Degree in succession, 251, App. L.
Delegation, marriage by, 44- 48.
Descendants, representation of, 237, 243, App>ii.lirr> F. H.
Dhawl-1-arham, 277, 304.
Disposable third, 62, 161.
Distant kindred, 277, 304.
Dower, 1, 3, 18,.19, 23, 24, 44-48,62,84-86,89,90,!*. '.U.I is.
120
Evidence, 184-223, App. A.
Exclusion of heirs, 276.
Father's share, 232234.
Forbidden degrees. See Degrees.
Fosterage, 121127.
Funeral expenses, 156158, 221.
Gharra', al-, 303, 306, App. Q.
Gharra'an, al-, 230, 2306, App. B.
Gifts, 165183.
Grand-daughter's share, 242247.
Grandfathers, 282, 294303, 306, Appendices 0, P. G.
Grandmothers, 277, 278, 289293.
Guardians, 5, 13, 213215, 218220.
Heirs, who are, 224 225.
Husbands, duties of, 42, 43, 87, 88, 139143, 151158.
Husband's, share in wife's inheritance, 226, 227.
Illegal marriages, 18 28.
Illness, marriage etc. during, 6164, 167, 285, 286, 288.
Impediments, perpetual, to marriage, 56, 57.
Imprecation, action of, 114 117.
Injurious Assimilation, 106 113.
Jabari, al-, 251, App. L.
Judgments, 184223. App. A.
Legacies, 221.
Lodging of wives, 139, 143145.
Marriage, 1 158. See also Dower, Wali, Repudiation etc.
Maintenance of wives, 139147, 151155.
Maternal relations, 304.
Minors, 100, 212215.
Mixed marriages, 39.
Mother's share, 230231, App. B.
Mourning, 135138.
Mudda% 184192. App. A.
Mushtarkah, al-, 263, App. M.
Murderer, 283.
Nephews, 268, 269, 277, 282.
Nieces, 277.
Oaths, 184193, 196.
Option, grounds of, 91 94.
Plaintiff, 184, App. A.
Polygamy, 41, 55, 99.
Pilgrimage, 60, 223.
Reduction, 231, 305, 306, App. C.
Release 80, 118120, 141.
Re-marriage, 27, 59, 65.
121
Representation, no, in Muslim law, App. L.
Repudiation, 66 79, 8188, 100 103, 1281:51.
139, 140, 147, 148, 285 -287.
Residuaries, 232, 235, App. D.
Retreat, 96, 98, 128134.
Scriptural woman, 39, 53, 54, 55.
Settlement of claims, 216, 217.
Sharers, 232, App. D.
Sister, succession of, 248254, 301303, 306.
Sister uterine, 255 257.
Sons, succession of, 235 240, App. E.
Succession, 63, 89, 9597, 221, 224306 and Appendices B to G.
Ta c dll, 198201, 205, 206, 209211, App. A.
Tajrlh, 209, App. A.
Testamentary Guardian. See Guardian.
Unlucky kinsman, 284, App. N.
Uncle, 281.
c Urf, App. A.
Virgins, 46, 99.
Wall, 1, 4, 5, 9, 15, 93.
Was!, See Guardian.
Wife, rights of, 8490, 95, 97, 99, 139-147, 151, 155-158.
Wife's, share in husband's inheritance, 228, 229, 230a.
Wills, 159164.
Witnesses, 194212, App. A.
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