CHAPTER XXIV.

THE MOHAMMEDAN LAW OF TURKEY, PERSIA, EGYPT, INDIA, MOROCCO AND ALGERIA.

The laws of Mohammedanism which are founded on the Koran and the Traditions of Mohammed to-day constitute the civil and religious code of many millions of the world's inhabitants.

A country that is subject to the government of Mohammedans is termed _Dar-ool-Islam_, or a country of safety and salvation, and a country which is not subject to such government is termed _Dar-ool-hurb_, or a country of enmity. Though Mohammedans are no longer under the sway of one prince, they are so bound together by the common tie of Islam that as between themselves there is no difference of country, and they may therefore be said to compose but one _dar_ or commonwealth.

A Mohammedan is subject to the law of Islam absolutely, that is without distinction of place or otherwise.

Every unbeliever in the Mohammedan religion is termed a _kafir_, or infidel, and infidels who are not in subjection to some Mohammedan state are generally treated by Islamic lawyers as _hurbees_, or enemies.

The Mohammedans are taught to believe that their system of jurisprudence is of divine origin, is incapable of improvement, and can never be changed in any material particular. The fact is that with all its alleged source, perfection and immutability Mohammedan law has not been able to escape the inevitable rule of change which seems to affect everything and everybody in this world.

There are certain countries where the entire legal and religious system is based on the laws of Mohammedanism; such countries are: Turkey, Persia and Morocco. There are other countries, such as Egypt, India and Algeria, where the law of Islam operates side by side with other legal systems.

In India there are four distinct systems of jurisprudence, all in full operation and effect. These are:

1. English law created by the British Parliament.

2. Anglo-Indian law, which is created in India by the Legislative Councils of the British Government.

3. Hindu law, which applies to every one in British India who is a Hindu, and to no one else.

4. Mohammedan law, which applies to every one in British India who is a Mohammedan, and to no one else.

If a Mohammedan in India abandons his religion he ceases to be governed by Mohammedan law.

Since the promulgation of the Regulations of Warren Hastings in 1772, all suits in British India regarding inheritance, marriage, caste and other religious usages and institutions with respect to Mohammedans have been decided invariably according to Mohammedan law.

EGYPT.--There are four kinds of legal tribunals in Egypt, namely:

1. The Native Courts, which have civil and criminal jurisdiction over natives.

2. The Consular Courts, which have jurisdiction over foreigners charged with crime.

3. The Mixed Tribunals, which have civil and criminal jurisdiction over persons of diverse citizenship.

4. The Mohammedan Courts, which deal with the questions of the personal rights of the Mohammedan inhabitants according to the laws of Islam.

As over ninety _per centum_ of the people of Egypt are Mohammedans, the importance of the Mohammedan Courts is apparent.

The Mohammedan law of marriage and divorce is also recognized as controlling and effective when the parties to a marriage are Mohammedans, in Russia, Roumania, Servia, Bulgaria and Greece.

MARRIAGE.--Marriage is enjoined on every Mohammedan, and celibacy is frequently condemned by Mohammed. "When the servant of God marries, he perfects half of his religion," said the Prophet. Once Mohammed inquired of a man if he was married, and being answered in the negative, he asked, "Art thou sound and healthy?" When the man answered that he was the Prophet angrily said, "Then thou art one of the brothers of the devil."

VALIDITY OF MARRIAGE.--Marriage, according to Mohammedan law, is simply a civil contract, and its validity does not depend upon any religious ceremony. Though the civil contract is not required to be reduced to writing, its validity depends upon the consent of the parties, which is called "_ijab_" and "_gabul_," meaning declaration and acceptance; the presence of two male witnesses (or one male and two female witnesses); and a dower of not less than ten _dirhams_ to be settled on the woman. The omission of the settlement does not, however, invalidate the contract, for under any circumstances, the woman becomes entitled to her dower of ten _dirhams_ or more.

It is a recognized principle that the capacity of each of the parties to a marriage is to be judged of by their respective _lex domicilii_.

The capacity of a Mussulman domiciled in England will be regulated by the English law, but the capacity of one who is domiciled in the _Belad-ul-Islam_, or Mohammedan country, by the provisions of Mohammedan law.

We are told by the highest authorities on Islamic law that the three principal conditions which are requisite for a proper marriage are: understanding, puberty and freedom in the contracting parties.

The Mohammedan law fixes no arbitrary age at which either male or female is competent to marry.

Besides understanding, puberty and freedom, the capacity to marry requires that there should be no legal disability or bar to the union of the parties; that in fact they should not be within the prohibited degrees of relationship.

LEGAL DISABILITIES.--There are nine prohibitions to marry, namely:

1. Consanguinity, which includes mother, grandmother, sister, niece and aunt.

2. Affinity, which includes mother-in-law, step-grandmother, daughter-in-law and step-granddaughter.

3. Fosterage. A man cannot marry his foster-mother, nor foster-sister, unless the foster-brother and sister were nursed by the same mother at intervals widely separated. But a man may marry the mother of his foster-sister, or the foster-mother of his sister.

4. Sister-in-law. A man may not marry his wife's sister during his wife's lifetime, unless she be divorced.

5. A man married to a free woman cannot marry a slave.

6. It is not lawful for a man to marry the wife or _mu'taddah_ of another, whether the _'iddah_ be on account of repudiation or death. That is, he cannot marry until the expiration of the woman's _'iddah_, or period of probation.

7. A Mohammedan cannot marry a Polytheist, but he may marry a Christian, Jewess, or a Sabean.

8. It is not lawful for a man to marry his own slave, or a woman her bondsman.

9. If a man pronounces three divorces upon a wife who is free, or two upon a slave, she is not lawful to him until she shall have been regularly espoused by another man, who having duly consummated the marriage, afterwards divorces her, or dies, and her _'iddah_ from him be accomplished.

In the _Koran_ or _El-Kor'an_ we find in the chapter on women (Sura IV.) the law expressed as to certain prohibitions:

"Forbidden to you are your mothers, and your daughters, and your sisters, and your aunts, both on the father's and mother's side, and your nieces on the brother's and sister's side, and your foster-mothers, and your foster-sisters, and the mothers of your wives, and your stepdaughters who are your wards, born of your wives to whom you have gone in: (but if ye have not gone in unto them, it shall be no sin in you to marry them) and the wives of your sons who proceed out of your loins; and ye may not have two sisters; except where it is already done. Verily, God is Indulgent, Merciful!"

POLYGAMY.--According to Mohammedanism polygamy is a divine institution, and has the express sanction of the law. Mohammed restrained the practice of polygamy by limiting the maximum number of contemporaneous marriages, and by making absolute equity toward all obligatory on the man. A Mohammedan may marry four wives but no more. The law is thus stated: "You may marry two, three, or four wives, but not more." However, all true believers are enjoined that, "if you cannot deal equitably and justly with all you shall marry only one."

In India more than ninety-five _per centum_ of the Mohammedans are at the present, either by conviction or necessity, monogamists. In Persia only two _per centum_ of the population enjoy the questionable luxury of plurality of wives.

CELEBRATION OF MARRIAGE.--The _Nikah_, or celebration of the marriage contract, is preceded and followed by festive rejoicings, which have been variously described by Oriental travellers, but they are not parts of either the civil or religious ceremonies. The Mohammedan law appoints no specific religious ceremony, nor are any religious rites necessary for the contraction of a valid marriage. Legally, a marriage contracted between two persons possessing the capacity to enter into the contract is valid and binding, if entered into by mutual consent in the presence of witnesses. As a matter of practice a Mohammedan marriage is generally concluded by a formal ceremony which is ended by the _Qazi_ offering the following prayer:

"O Great God! grant that mutual love may reign between this couple, as it existed between Adam and Eve, Abraham and Sarah, Joseph and Zalikha, Moses and Zipporah, his highness Mohammed and Ayishah, and his highness Ali al-Murtaza and Fatimatu'z-Zahra."

HUSBAND AND WIFE.--A husband is not guardian over his wife any further than respects the rights of marriage, nor does the provision for her rest upon him any further than with respect to food, clothing and lodging.

A husband must reside equally with each of his wives, unless one wife bestow her right upon another wife.

A wife cannot give evidence in a court of law against her husband. If she becomes a widow she must observe mourning for the space of four months and ten days.

In the event of her husband's death a wife is entitled to a portion of her husband's estate, in addition to her claim of dower, the claim of dower taking precedence of all other claims on the estate.

"The women," says the Koran, "ought to behave toward their husbands in like manner as their husbands toward them, according to what is just."

When the husband has left the place of conjugal domicile without making any arrangements for his wife's support, the judge is authorized by law to make an order that her maintenance shall be paid out of any fund or property which the husband may have left in deposit or in trust, or invested in any trade or business.

When a woman abandons the conjugal domicile without any valid reason, she is not entitled to maintenance from her husband.

The Mohammedan law lays down distinctly that a wife is bound to live with her husband, and to follow him wherever he wishes to go; and that on her refusing to do so without sufficient or valid reason, the courts of justice, on a suit for restitution of conjugal rights by the husband, would order her to live with her husband.

The obligation of the wife, however, to live with her husband is not absolute. The law recognizes circumstances which justify her refusal to live with him.

Although the condition of women under Mohammedan law is most unsatisfactory, it must be admitted that Mohammed effected a vast and marked improvement in the condition of the female population of Arabia. Amongst the Arabs who inhabited the peninsula of Arabia the condition of women was extremely degraded, for amongst the pagan Arabs a woman was a mere chattel. The Koran created a great reformation in the condition of women. For the first time in the history of Oriental legislation the principle of equality between the sexes was approached.

DIVORCE.--The Mohammedan law of divorce is founded upon express injunctions contained in the Koran, as well as in the Traditions, and its rules occupy an important part of all Mohammedan works on jurisprudence.

These rules may be summarized thus:

The thing which is lawful but disliked by God is divorce.

A husband may divorce his wife without any misbehaviour on her part, or without assigning any cause.

There is an irregular form of divorce in which the husband repudiates his wife by three sentences, either express or metaphorical, as for example: "Thou art divorced! Thou art divorced! Thou art divorced!" The Mohammedan who thus divorces his wife is held in the _Hidayah_ to violate the law, but the divorce is legal.

A sick man may divorce his wife, even though he be on his death-bed.

An agent or agents may be appointed by a husband to divorce his wife.

In addition to the will or caprice of the husband, there are also certain conditions which require a divorce.

The following are causes for divorce, but generally require to be ratified by a decree from the _Qazi_ or judge:

1. _Jubb._ That is, when the husband has been by any cause deprived of his organ of generation. This condition is called _majbub_, and if it existed before the marriage the wife can obtain instant divorce.

2. _Unnah._ Impotence of either husband or wife.

3. Inequality of race or tribe.

4. Insufficient dower. (If the stipulated dowry is not given when demanded.)

5. Refusal of Islam. If one of the parties embrace Islam, the judge must offer it to the other three distinct times, and if he or she refuse to embrace the faith, divorce follows.

6. Unjust accusation of adultery by a husband against his wife.

7. If a wife becomes the proprietor of her husband or the husband becomes the proprietor of his slave wife divorce takes place.

8. An invalid marriage of any kind, arising from consanguinity or affinity of parties, or other causes.

9. The executed vow of a husband not to have sexual intercourse with his wife for as long as four months.

10. Difference of country. As, for example, if a husband flee from a non-Moslem country to a country of Islam and his wife refuses to accompany him.

11. Apostasy from Islam.

The Greek Church holds that marriage is dissoluble in case of adultery, but not till a probationary period has elapsed during which a bishop or priest mediates with a view to reconciliation.

A fourth marriage is unlawful.

When a man or woman apostatizes from Islam, then an immediate dissolution of the marriage takes place, whether the apostasy be of the man or of the woman, without a judicial decree. If both husband and wife apostatize at the same time, their marriage bond remains; and if at any future time the parties again return to Islam, no remarriage is necessary to constitute them man and wife.

There is a form of divorce known as _khula_ which is when a husband and wife disagreeing, or for any other cause, the wife on payment of a compensation or ransom to the husband, is permitted by law to obtain from him a release from the marriage tie.

_Mubara'ah_ is a divorce which is effected by mutual release.

A COMPARISON.--When compared with the Mosaic law it will be seen that by the latter, divorce was only sanctioned when there was "_some uncleanness_" in the wife, and whilst in Islam a husband can take back his divorced wife, in the law of Moses it was not permitted. See Deut. xxiv., 1-4.

IDDAH OR IDDAT.--This is the term of probation incumbent upon a woman in consequence of a dissolution of marriage, either by divorce or the death of her husband. After a divorce the period is three months, and after the death of her husband four months and ten days, both periods being enjoined by the Koran.

EFFECTS OF DIVORCE:

1. Sexual intercourse between the divorced persons becomes unlawful.

2. The wife is free to marry another husband after the completion of her _iddah_; or immediately if the marriage was never consummated.

3. The husband may complete his legal number of four wives without counting the divorced one, or may marry a woman who could not be lawfully joined with the divorced one, for example, her sister, after the completion of her _iddah_ but not before.

4. If the marriage has been consummated before the divorce, the whole of the unpaid dower becomes immediately payable by the husband to the wife, and is enforceable like any other debt if the marriage had not been consummated and the amount of dower was specified in the contract, he is liable for half that amount; if none was specified, he must give the divorced wife a present suitable to her rank, or their value. But the wife has no right to anything if the divorce took place by her wish, or in consequence of any disqualifications on her side, as for instance, her apostasy.

5. The wife is entitled to be maintained by her husband during the _iddah_ on the same scale as before the divorce, conditionally on submitting to her husband's control as regards her place of residence and general behaviour. But on completion of her _iddah_ she ceases to have any claim for maintenance.