Islamic Law: Personal Law
ISLAMIC LAW: PERSONAL LAW
The area of personal law is often considered to be the main bastion of Islamic law. One reason for this is that the Qurʾān devotes greater attention to subjects such as marriage, divorce, and inheritance than it does to any other legal topic. In this sense the law of personal status represents an entrenched part of the religion, and Muslims have by and large regarded adherence to its principles as a criterion of the religious propriety of individuals and governments. It is, therefore, not surprising to find that the sharīʿah law of personal status has remained largely applicable in Muslim countries today in spite of recent reforms that have adapted many aspects of the classical law to suit the requirements of modern life. Reform of the sharīʿah law is a phenomenon of the twentieth century and, because of the continuing relevance of the law of personal status to the Muslim community, has been concentrated mainly in that area. Other portions of the sharīʿah, such as criminal law, taxation, and constitutional law, have either fallen into abeyance or remained relatively untouched by modern reformist legislation. Under the renewed influence of Islamic movements in the 1970s and 1980s, however, these other areas of the law have also begun to attract the attention of reformers as the effort is made to revive their significance.
In modern-day Islam, the Ḥanafī school commands a greater following than any other school of law. This survey is, therefore, based on sharīʿah law as developed within the framework of the Ḥanafī school. Wherever Ḥanafī law diverges from the law of the other three Sunnī schools (Shāfiʿī, Mālikī, and Ḥanbalī), their differences are outlined. References to Shīʿī law generally relate to the Twelver Shīʿī school, which is mainly adhered to in Iran and has the largest following of all the branches of Shīʿī Islam.
Like any other private contract, marriage under sharīʿah law is concluded by the mutual agreement, oral or written, of the parties or their representatives. The only formality required is the presence of two witnesses at the conclusion of the contract, and even this is not necessary under Shīʿī law. Formalities usually observed, such as ceremonies performed in the presence of a religious leader, are matters of customary practice and not a legal requirement.
The requirements of a marriage contract are basically the same in all sharīʿah schools. First, the parties or their representatives must be legally competent persons, and second, there must be no legal impediment to marriage. Sanity and majority are the basic requirements of the legal capacity to contract. Legal majority is established with physical puberty, which is attained upon proof of sexual maturity rather than at a specific age. Unless proven otherwise, a boy below the age of twelve and a girl below the age of nine are legally presumed to be minors. Similarly, both sexes are presumed to have attained majority with the completion of the fifteenth year. A boy or girl who has reached the minimum age of majority but is still below fifteen is permitted to marry provided he or she shows signs of puberty. A person who has attained majority (bāligh ) and is of sound mind (ʿāqil) has rights and obligations, must fulfill religious duties, and incurs criminal responsibility. The minor (saghīr ) and the insane (majnūn ) are wholly capable of contracting marriage. The idiot (maʿtūh ) and the imbecile, who are incapable of managing their own affairs, have the capacity only to conclude purely advantageous transactions, such as the acceptance of a gift, but they are not permitted to contract marriage. A major who is incompetent (safīh ) may be subjected to interdiction (ḥajr ) and placed under the supervision of the authorities, and this procedure could lead to restrictions on his capacity to contract. An adult woman has the capacity to contract her own marriage only in Ḥanafī and Shīʿī law. According to the other three Sunnī schools, her marriage guardian (walīy ) must conclude the contract on her behalf. All schools recognize, in principle, the compulsory power of the marriage guardian, which is known as ijbār. The guardian is accordingly authorized to contract his ward, whether the ward is male or female, in marriage at his discretion regardless of the ward's wishes. But the precise extent of this power varies among the schools. In Ḥanafī law, only minor wards are subject to ijbār, and the power is absolute only when exercised by the father or paternal grandfather. In all other cases, the ward has the right to repudiate the marriage on attaining puberty. This option of puberty (khiyār al-bulūgh ) is, however, lost by the affirmative act of consummating the marriage. Guardianship in marriage is vested in the nearest male relatives in accordance with the order of priorities that is applied in inheritance, that is, the father, grandfather, brother, nephews, uncles, and cousins, and failing them, the female relatives.
Under the Ḥanafī doctrine of kafāʾah (equality), the guardian of an adult female may oppose the marriage of his ward on the ground that the prospective spouse is not her equal. This doctrine is, however, mainly applicable to the man, who is required to be the equal of his prospective wife in respect of lineage, religion, freedom (as opposed to slavery), piety, means, and profession. If, however, both the guardian and bride fail to raise the question of equality before the contract, neither can have the marriage annulled upon discovery that the husband is not the equal of his wife. In both the Shāfiʿī and Mālikī schools, the adult virgin is denied the right to conclude her own marriage; because the guardian himself is concluding the marriage, the doctrine of kafāʾah is not applicable under these schools.
Marriage is prohibited between close relatives. Relationships that constitute permanent impediments to marriage fall into three categories: (1) blood relationship (garābah ), which implies that a man may not marry any of his lineal descendants, lineal ascendants, the offspring of his parents, or the immediate child of any grandparent; (2) affinity (muṣāharah ), which creates a bar to marriage between a man and the ascendants or descendants of his wife, or the wife of any of his ascendants or descendants; (3) fosterage (raḍāʿ ), which arises when a woman breast-feeds the child of someone else. Fosterage creates a bar to marriage not only between foster brothers and sisters, but also between the foster mother and all her relatives on the one side, and her foster children, their spouses, and descendants on the other.
In addition, difference of religion is a bar to marriage: A Muslim woman may not marry a non-Muslim man unless he professes Islam. A Muslim man is, on the other hand, allowed to marry a kitābīyah, that is, a woman who follows a religion that has a revealed scripture, such as Judaism or Christianity. The Qurʾān further prohibits both Muslim men and women from marrying polytheists or fire worshipers. Finally, a man may not marry a woman who is already married or who is observing ʿiddah, that is, the waiting period that a woman must observe following a divorce, with the exception of a divorce ending an unconsummated marriage. ʿIddah usually lasts for three menstrual cycles or, where the wife proves to be pregnant, until the delivery of the child. The main purpose of ʿiddah is to determine a possible pregnancy prior to marriage. A widow must observe a waiting period of four months and ten days following the death of her husband.
The marriage contract is classified into three types, namely valid (ṣaḥīḥ), irregular (fāsid), and void (bāṭīl). A marriage contract is valid when it fulfills all the legal requirements. This contract brings about a fully effective union that renders intercourse lawful between the spouses, entitles the wife to dower and maintenance, obligates the wife to be faithful and obedient to the husband, and creates prohibited degrees of relations and mutual rights of inheritance between the spouses.
A void (bāṭīl) marriage is one that is unlawful from the outset and that does not create any rights or obligations between the parties. In such a marriage no illicit sexual intercourse (zināʾ ) is considered to have been committed if the parties were unaware that the marriage was void. Marriage with a woman within the prohibited degrees and marriage that is brought about without the consent of the adult parties are void. The offspring of a bāṭīl marriage is illegitimate.
An irregular (fāsid) marriage, on the other hand, is not unlawful in itself, but involves some irregularity of a temporary nature that could be rectified by means of a new contract. Marriage without witnesses, marriage with a fifth wife (the maximum limit being four), marriage with a non-kitābīyah (a woman who is neither Jewish nor Christian), and marriage with a woman undergoing ʿiddah are examples of fāsid marriages. Such a marriage may be terminated by either party or by a judge, should it come to his notice. A fāsid marriage has no legal effect before consummation, but when consummated, the wife is entitled to dower and maintenance, and the issue of the marriage is legitimate. A fāsid marriage does not create any right of inheritance between the parties.
Islamic law requires the husband to pay his wife a dower (mahr ). The amount of dower and the terms of its payment are matters of agreement between the parties. Anything that can be considered as goods (māl) may be given as a dower, but objects that are prohibited in Islam, such as wine and pork, are excluded from the definition of māl. If no dower is specified in the contract, the wife is entitled to a "proper" dower (mahr al-mithl ), that is, a dower that is equivalent to the dower usually received by women of similar status. A dower may be paid at the time of the contract, or it may be deferred, in whole or in part, subject to the agreement of the parties. A deferred dower remains a debt on the part of the husband and is payable upon the dissolution of the marriage by death or divorce. In the event of a divorce prior to consummation, the wife is entitled to half the specified dower; if no dower is specified in the contract, the wife is entitled to a gift (mutʿah ), which consists of a set of clothing.
The husband is bound to maintain his wife as soon as she cohabits with him. Should she refuse to cohabit or refuse herself to him, the husband is relieved of his duty, unless her refusal is for a lawful cause such as the husband's failure to pay the dower or unsuitability of the lodging for a person of her status. In such cases, the wife's refusal to cohabit does not relieve the husband of his duty of maintenance, which includes food, clothing, and accommodation. According to the majority of jurists, the wife is entitled to maintenance in a style that conforms to the husband's status, regardless of her own premarital position. Should the husband desert his wife without providing for her maintenance, a judge may authorize the wife to make the necessary arrangements at her husband's expense. The wife is not, however, entitled to a decree for past maintenance unless the claim is based on a specific agreement. Shāfiʿī and Shīʿī law, on the other hand, entitle the wife to claim her past maintenance. The general rule in maintenance is that no individual who is capable of maintaining himself is entitled to receive maintenance from others; the only exception is the wife, who is entitled to maintenance regardless of her own financial status. The father is bound to maintain his sons until they attain puberty, and his daughters until they are married; he is also responsible for the maintenance of a widowed or divorced daughter. The law entitles every blood relative to maintenance provided that, if male, he is a child and destitute, and if a female, she is destitute whether a child or an adult. A widow is not entitled to maintenance during the period of ʿiddah following her husband's death, because in this case she would be entitled to a share of the inheritance. The liability of a person to support these relatives is generally proportionate to his or her share of their inheritance.
The sharīʿah entitles the husband to discipline his wife lightly when she transgresses. The law is not precise as to how and when the husband is entitled to do so, nor indeed as to what amounts to a transgression (maʿṣiyah ). She must not dishonor him, refuse herself to him without lawful excuse, or cause him loss of property that is deemed unacceptable according to normal social usage. The wife is entitled to visit her parents once a week and other relatives once a year, even without the permission of her husband. She may also leave the husband if he refuses to pay her a dower. Similarly, unreasonable requests by the husband—that she should accompany him on long journeys, for example—may be refused by her. The wife retains her full capacity to enter contracts and transactions with regard to her own property as if she were not married. Indeed, the law recognizes no merger of either the personality or the property of the wife into that of her husband's. Separation of property is the norm in sharīʿah law and is presumed to apply unless the parties make a specific agreement to the contrary. If a man beats his wife without reason (even lightly), or beats her for cause but exceeds moderation, he is liable to punishment following her complaint to the court.
Islam allows a man to marry up to four wives simultaneously provided that he does not combine, as co-wives, two women so closely related that if either of them were a male, they would themselves be within the prohibited degrees of marriage. Each of the co-wives is entitled to a separate dwelling and to an equal portion of the husband's time and companionship.
Modern legislation in Muslim countries has either sought to restrict the practice of polygamy or to abolish it altogether. At the one extreme is the Tunisian law of 1957, which prohibits polygamy outright. At the other is the Moroccan law of 1958, which entitles the wife to seek judicial divorce if she has suffered injury as a result of polygamy. Syria, Iraq, and Pakistan have adopted a middle course by requiring official permission before a polygamous marriage is contracted. The modernists have generally justified their reforms by direct resort to the Qurʾān and a reinterpretation of the Qurʾanic verse on polygamy (5:4), which permits polygamy but at the same time expresses the fear of injustice in polygamous relationships. Modern reformers have reasoned that the fear of injustice in a polygamous marriage is bound to be present in every case of polygamy and therefore have concluded that abolishing polygamy is consistent with the Qurʾanic dispensations.
Marriage under Sunnī law is a lifelong union, and any stipulation that sets a time limit to it nullifies the contract. Shīʿī law, however, recognizes temporary marriage, known as mutʿah. This is a contractual arrangement whereby a woman agrees to cohabit with a man for a specified period of time in return for a fixed remuneration. Mutʿah does not give rise to any right of inheritance between the parties, but the issue of mutʿah is legitimate and entitled to inheritance. As the reader will note, mutʿah also signifies a gift of consolation to a divorced woman; the word appears in the Qurʾān in both senses (2:236, 4:24), hence the origin of its double legal meaning.
Modern legislation in most Muslim countries compels marriage registration, and failure to comply is usually liable to legal sanctions. The law similarly requires the express consent of the parties to a marriage in order for it to be valid. To facilitate meeting the consent requirement, parties to a marriage contract must be of marriageable age. This age is almost everywhere enacted at sixteen for females and eighteen for males. Modern reforms concerning the age of marriage have thus departed from the classical sharīʿah, which stipulated no specific age for marriage and only presumed the minimum and maximum ages of legal majority; the age of marriage established under the new codes also signifies the age of majority for all legal purposes. A marriage in which the parties have not reached the specified age is denied registration and may render the parties liable to statutory penalties. As a result of the enactment of a statutory age for marriage, child marriage has been effectively abolished in most Muslim countries. Similarly, the powers that the marriage guardian enjoys under classical sharīʿah law have, as a result of the age provisions, been either abolished or substantially restricted.
Marriage under sharīʿah law may be dissolved either by the husband at his will, by mutual agreement of the spouses, or by a judicial decree. All the sharīʿah schools recognize the husband's right of unilateral repudiation, known as ṭalāq. Sunnī law requires no formalities as to the manner in which a ṭalāq may be pronounced. A husband of sound mind who has attained puberty may effect ṭalāq orally or in writing without assigning any cause. Any words indicative of repudiation may be used, and no witnesses are necessary for the pronouncement. In Shīʿī law, ṭalāq must be pronounced in the presence of two witnesses, and the exact term ṭalāq must be used. Whereas in Ḥanafī law ṭalāq pronounced by way of jest or in a state of intoxication is nonetheless valid, in both Shāfiʿī and Shīʿī law, ṭalāq is valid only when accompanied by a definite intention.
The husband can delegate his power of ṭalāq to his wife or to a third person who may then pronounce it according to the terms of the authorization (tafwīḍ ). Thus there can be a valid agreement between the spouses authorizing the wife to repudiate herself if the husband marries a second wife, and the wife can exercise the power when the occasion arises.
In Sunnī law, ṭalāq is classified as "approved" (ṭalāq al-sunnah ) or "disapproved" (ṭalāq al-bidʿah ), according to the circumstances in which it is pronounced. The former is generally revocable, whereas the latter is irrevocable and terminates the marriage tie immediately upon pronouncement. The "approved" ṭalāq may consist of either a single repudiation pronounced during a clean period, that is, a period between menstruations, known as ṭuhr, followed by abstinence from sexual intercourse for the whole of the waiting period (ʿiddah ), or it may consist of three repudiations pronounced during three successive ṭuhr s. In the former case, ṭalāq becomes final after the expiration of the ʿiddah, whereas in the latter, it becomes final upon the third pronouncement. Until the ṭalāq becomes final, the husband has the option to revoke it, and this may be done either expressly or by implication, through the resumption of normal marital relations. The "disapproved" ṭalāq may consist of a single repudiation which is expressly declared to be final, or it may consist of three repudiations pronounced at once. Shīʿī law does not recognize the "disapproved" form of ṭalāq.
Divorce by mutual agreement may take one of two forms: khulʿ, in which the wife secures her release from the marital tie by offering the husband financial consideration, commonly the return of the dower, which is accepted by the husband; or mubāraʾah, which is a dissolution of marriage on the basis of mutual release of the spouses from any outstanding financial commitments arising from the marriage. In both cases, the divorce is final and extrajudicial, effected simply by the mutual agreement of the parties.
With respect to judicial dissolution, Ḥanafī law is the most restrictive of all the sharīʿah schools. This law allows a woman to seek a dissolution (faskh ) of her marriage from a qāḍī (Islamic judge) under four specific conditions: If she was married at a young age by a guardian other than her father or grandfather, she can ask the qāḍī to dissolve the marriage upon attaining puberty; if insane, upon regaining her sanity; if the husband is sexually impotent; or if he is a missing person and ninety years have elapsed since the date of his birth. All the other schools, including the Shīʿī, authorize the qāḍī to grant a judicial divorce in cases where the husband is suffering a physical or mental disease. Whenever it is proved that the disease is incurable, the court is to order dissolution immediately, but if it is a disease that requires time to cure, the court must order a stay of judgment for one year. The Shāfiʿī and Ḥanbalī schools also consider a husband's willful refusal to support his wife and a husband's desertion as valid grounds for a judicial divorce. Even more liberal is the Mālikī school, which recognizes the husband's illness, his failure to maintain, desertion for more than one year for whatever reason, and injurious treatment (ḍarar ) as valid grounds for judicial divorce. According to the last ground, the wife can demand a judicial dissolution by claiming that cohabitation with her husband is injurious to her in a way that makes the continuation of marital life impossible for a person of her status. A decree of divorce granted on any of these grounds is final, except in the case of failure to maintain, where the court's degree effects only a revocable divorce, and the husband can resume normal marital relations during the period of ʿiddah if he proves that he can support his wife.
And finally, apostasy from Islam by either of the spouses operates as an immediate and final dissolution of the marriage without any judicial intervention. If both spouses renounce Islam simultaneously, their marriage is permitted to endure. Conversion to Islam by the husband alone where both spouses were Jewish or Christian does not impair the marriage, and the wife may retain her religion. However, if a Christian or Jewish woman, married to a man of the same faith, becomes a Muslim, the marriage is dissolved unless the husband also adopts Islam.
A final divorce, whatever its mode may be, renders sexual intercourse unlawful and entitles the wife to remarry after completing the waiting period of ʿiddah. If the marriage is not consummated, she is free to marry immediately. A triple ṭalāq renders remarriage between the divorced couple unlawful until the woman marries another person; only after the dissolution of this latter marriage may she remarry her former husband. Upon a final divorce, mutual rights of inheritance cease between the parties, and any outstanding dower becomes immediately payable to the wife. She is entitled to maintenance only during her ʿiddah.
Modern reforms of divorce law in Muslim countries have been primarily directed at restricting the husband's power of unilateral divorce on the one hand, and at increasing the remedies available to the wife in cases of injurious circumstances on the other. The main restriction on the husband's power of unilateral ṭalāq comes from the abolition of the irrevocable forms of ṭalāq. The husband is thus no longer able to terminate his marriage immediately by pronouncing a final and irrevocable ṭalāq. Legislation in some Muslim countries also entitles the wife to financial compensation for any injury she may have sustained as a result of the husband's abuse of his power. In the traditionally Ḥanafī countries, the wife's position has been enhanced by legislative measures, which entitle her to a judicial divorce on grounds substantially the same as those recognized under Mālikī law. Modern legislation has also departed from the Ḥanafī position that ignores intention in ṭalāq by adopting provisions under which ṭalāq is only valid if accompanied by a definite intention. The Tunisian law of 1957 is the most far-reaching of the modern reforms in that it abolishes all forms of extrajudicial divorce, whether by ṭalāq or by mutual consent. By abolishing the husband's power of unilateral ṭalāq, the Tunisian law effects complete equality between the spouses in divorce.
In pre-Islamic Arabia, succession was purely tribal and agnatic, that is, the heirs were normally the closest male relatives, and women and minors were excluded. A fundamental reform that the Qurʾān brought about was to assign definite shares to female relatives. According to the Islamic scheme of inheritance, a female generally receives half the share of a male. The deceased fictitiously remains the owner of the estate until his obligations are fully discharged. The creditors can, therefore, only assert their claims against the estate and not against the individual heirs. All funeral expenses, debts, and bequests have to be paid in full before the estate can be distributed among the heirs.
An essential condition of inheritance is that the heir must survive the deceased. In doubtful cases, arising, for example, when persons who would inherit from one another have died without proof of who died first, neither can inherit from the other according to the majority, but Shīʿī and Ḥanbalī law entitle both to inherit from one another. Similarly, inheritance can only pass to an heir who exists at the time of the death of the deceased, except when a man leaves a pregnant widow, in which case the share of an unborn male child is reserved for the offspring. If the child is female, she will receive her normal share of inheritance, and the remainder of the reserved portion reverts back to the estate to be redistributed among the heirs proportionate to their normal shares.
The birth of a child, whether male or female, may affect the position of an heir in a variety of ways. He or she may be excluded from succession, have their share reduced, or in some circumstances, become entitled to a larger share. In all cases, the present heirs are, according to the majority view, entitled to take their minimal shares and reserve the largest share for the unborn child. This is the share of a male child under Ḥanafī law, whereas the Shāfiʿī, Ḥanbalī, and Shīʿī law assume that twin boys or twin girls will be born, and the other heirs are entitled to the share they would receive in one case or the other, whichever is less. In Mālikī law the distribution is completely suspended until the birth of the child. All schools are unanimous, however, in suspending the distribution of the estate in the event that all the other heirs would be totally excluded by the birth of the child. Excluded from succession are the following: one who has caused the death of the deceased; a non-Muslim as the heir of a Muslim and vice versa (a bequest, however, can be made to a non-Muslim), and a slave who, under classical law, is not capable of owning property.
The heirs are mainly divided into three groups: those who are entitled to a prescribed share, known as Qurʾanic heirs (dhawū furūḍ ); those who receive the remainder, known as agnatic heirs (ʿaṣabah ); and distant kindred (dhawū al-arḥām ), persons who are related to the deceased in the female line and fall into neither of the first two categories. In the absence of all three, the estate goes to the public treasury (bayt al-māl).
The Qurʾān allots shares to eight relatives, namely the daughter, mother, father, husband, wife, brothers, and sisters. But the rules regarding the daughter have been extended, by analogy, to the daughter of a son, and those regarding the parents, to the grandparents. In addition, a distinction has been made between a full sister, a half sister on the father's side, and a half sister on the mother's side. The total number of Qurʾanic heirs has thus been raised to twelve.
A daughter who has no brothers is entitled to half the estate, and two or more daughters share equally in a portion of two-thirds. But if daughters inherit along with sons, they become ʿaṣabah and receive half the portion of the sons. A son's daughter without brothers inherits half the estate; if there are two or more son's daughters, their share is two-thirds. A son's daughter is excluded if that son has two or more sisters inheriting along with him. The father inherits one-sixth in the presence of a son, and in the presence of a daughter or a son's daughter, one-sixth plus any residue. In the absence of descendants, the father inherits as the nearest ʿaṣabah. The father's father inherits one-sixth, but he is excluded if the father is alive. The mother's portion is one-sixth if there are children and one-third if there are none. The mother's mother inherits one-sixth, but she is excluded if the mother is alive. One full sister in the absence of brothers inherits one-half, and two or more, two-thirds. A half sister on the father's side receives the same share as a full sister, but both are excluded in the presence of a son, or a son's son, or the father. Both a half brother and a half sister on the mother's side receive one-sixth, and two or more share a third among them, but they are excluded by descendants and male ascendants. The husband receives a quarter if there is a descendant, and in the absence thereof, a half. The wife inherits one-half of what the husband would receive under the same circumstances.
Sometimes the number of qualified Qurʾanic heirs or the sum of their shares may be larger than the whole of the estate. In this case, their shares are reduced under the principle of proportionate reduction, known as ʿawl. For example, if the deceased is survived by a husband and two full sisters, their shares will be one-half and two-thirds respectively, which exceed unity. Hence, the share will be reduced to three-sevenths and four-sevenths respectively.
The agnatic heirs (ʿaṣabah ) inherit the remainder of the estate after the Qurʾanic heirs have received their shares. The ʿaṣabah are divided into the following classes, in order of priority: (1) the son and his descendants in the male line; (2) the father and his ascendants in the male line; (3) the male descendants of the father; (4) descendants of the paternal grandfather; and (5) descendants of the paternal great-grandfather. Any member of a higher class totally excludes any member of a lower class, except that the brothers of the deceased are not excluded by the grandfather. Among the relatives of the same class, the nearer in degree to the deceased excludes the more remote: In class three, for example, a nephew will be excluded by the deceased's brother. Among agnatic relatives of the same class and the same degree, germanes have priority over consanguines. Thus, for example, the germane brother of the deceased totally excludes the consanguine brother.
If there is no ʿaṣabah and the Qurʾanic heirs do not exhaust the estate, the remainder is proportionately distributed among the Qurʾanic heirs under the principle of reversion, known as radd. For example, if the deceased is survived by his mother and a daughter, their shares will be one-sixth and one-half; because these are less than unity, they will be increased to one-quarter and three-quarters respectively.
All the sharīʿah jurists agree that a person who is adult and sane has the capacity to make a bequest, while bequests made by a minor or a mentally defective person, a person acting under compulsion, or under temporary loss of reason (through, for example, intoxication) are void. A bequest may be oral or written, and any words, or even signs, may be used provided they clearly indicate the testator's intention. All free individuals, juristic persons, and fetuses in the womb, whether Muslim or non-Muslim, and irrespective of domicile, are capable of receiving a bequest. Any object of value that is considered as goods (māl), including income and usufruct arising out of the property owned by the testator, may be given in bequest. A bequest is invalid if made in pursuit of unlawful purposes, such as promoting a brothel. Further, no Muslim may bequeath more than one-third of the residue of his estate after the payment of debts and other charges. In Sunnī law, a bequest made in favor of a legal heir is void unless the other heirs consent to it. Similarly, a bequest that exceeds the bequeathable third does not take effect without the consent of the surviving heirs. In Sunnī law, such consent must be obtained after the death of the testator, whereas in Shīʿī law it may be obtained either before or after the testator's death. Shīʿī law also permits the testator to bequeath to any person, including a legal heir, within the limit of one-third. Without the consent of the surviving heirs, bequests amounting to more than one-third of the estate must be reduced to the maximum of one-third.
A testator may specify the order in which several of his bequests are to be executed, and this order will be observed until the bequeathable third is exhausted. If no order is specified and the limit of one-third is exceeded, the abatement will be proportionate in Sunnī law, whereas under Shīʿī law the first in chronological order prevails. A bequest is null and void if made in favor of a person who has caused the death of the testator. And finally, if the legatee predeceases the testator, the bequest lapses in Ḥanafī law, but passes on to the heir of the deceased legatee in Shīʿī law.
Paternity is the legal relation between father and child that is created by a legitimate birth. The paternity of a child is normally established by marriage between its parents. Maternity on the other hand is not dependent upon marriage. In Sunnī law, the maternity of a child, whether the offspring of marriage or of adultery, is established in the woman who actually gives birth to the child. Thus if a man commits adultery and a child is born, it is considered to be the child of its mother and inherits from her and her relations. But the man is not considered to be the father of the child, for paternity is established only through marriage. In Shīʿī law, however, an illegitimate child has no legal relationship with either its father or its mother.
The law normally presumes that a child born to a married woman is the legitimate child of her husband. This presumption, however, operates within the limits of what the law recognizes as the minimum and maximum duration of the gestation period. According to all the sharīʿah schools, the minimum period of gestation is six months. The maximum period varies between nine months (Shīʿī), two years (Ḥanafī), four years (Shāfiʿī), and five to seven years (Mālikī). In Ḥanafī law, therefore, the paternity of the child is ascribed to the husband if it is born after not less than six months of marriage, and within not more than two years after the dissolution of marriage. The only method by which the husband can challenge the presumption of legitimacy and disown his child is to resort to the imprecation procedure, known as liʿān. According to this procedure, the husband must swear four oaths that the child is not his and then invoke the curse of God upon himself if he is lying. This effects an immediate and final divorce according to the majority view, whereas in Ḥanafī and Shīʿī law, the marriage subsists until the court orders the parties to separate. If the wife confesses to the adultery, the penalty is imprisonment according to Ḥanafī law, and death by stoning according to the other schools (Ḥanafī law forbids the enforcement of capital punishment for zināʾ unless it is proven by the testimony of four witnesses). Alternately, she may deny the charge by swearing four solemn oaths to plead her innocence and finally calling upon herself the wrath of God if she was in fact guilty. Regardless of whether the wife confesses or denies the charge, as a consequence of liʿān the child is disowned by the husband.
Either of the spouses, or failing this, the judge, may initiate the liʿān proceedings. The traditional law of liʿān does not, however, provide for the eventuality where the wife might initiate a charge of adultery against the husband. In the event that the wife accuses the husband of zināʾ, she would normally be required to prove the accusation by the testimony of four witnesses, in which case the husband would be liable to the capital punishment for zināʾ. But if she fails to provide the required proof, she would herself be liable to punishment for slanderous accusation (qadhf), which is eighty lashes. In neither case, however, would recourse be made to liʿān, for the latter is invoked only when the husband accuses his wife of zināʾ, and not vice versa. If the husband accuses his wife of zināʾ but fails to resort to liʿān, he too would be liable to the punishment of qadhf. Some jurists have held the view that the wife's unproven accusation of zināʾ would provide sufficient grounds for judicial separation on the basis of injury (ḍarar ).
Where the paternity of a child cannot be proved by establishing a marriage between the parents at the time of conception, the law recognizes acknowledgment (iqrār ) as a method whereby such a marriage and legitimate descent can be established. This method can be used only if real paternity is possible; thus the acknowledged child must be at least twelve and one-half years younger than the acknowledging parent, because this interval represents the minimum period of gestation added to the minimum age of puberty. In addition, one person may acknowledge the paternity of another on the following three conditions: the child is of unknown paternity; there is no definite proof that the child is the offspring of adultery; and the acknowledgment does not contradict another person's presumption of paternity. An acknowledgment need not be expressed in words, but may be implied by the deliberate conduct of one person who treats another as his legitimate offspring. Subject to repudiation by an acknowledgee who is adult and sane, an acknowledgment of paternity is binding for all purposes, and once effected, it is irrevocable.
The sharīʿah law of paternity has been criticized mainly for accepting gestation periods of two years (Ḥanafī law) or more, which has encouraged people to claim the paternity of illegitimate children for purposes of inheritance. In a 1929 law, the Egyptian legislature reduced the maximum period of gestation to one year. Consequently, no claim of paternity on behalf of a child born more than one year after the termination of the marriage can be heard in Egyptian courts. Furthermore, the Egyptian law provides that proof of nonaccess between the spouses because their marriage or for one year preceding the birth of a child would debar a claim of the legitimacy of such a child. Syria, Tunisia, and Morocco have also adopted these measures with minor variations, and one year represents the maximum period of gestation in these countries. It may be added that the modern law provision enabling a husband to prove that he had no physical access to his wife during the possible time of conception supersedes the procedure of liʿān. In appropriate circumstances, therefore, the new rules of evidence will determine the disputed paternity of a child. Proof of nonaccess, under modern law, would also seem to defeat the claim to inheritance of a child in embryo, at least where the basis of such a claim is the legitimacy of the child, and would, in turn, overrule the provision of the traditional law concerning the reservation of a portion of the estate for such a child. The fundamental rules governing the custody of children (ḥaḍānah ) are common to all the sharīʿah schools. Following the dissolution of a marriage, the custody of the young children belongs to the mother, but she loses this right if she remarries, in which case custody reverts to the father. The mother's right to custody terminates with the completion of seven years in the case of male children, and in case of female children, with the onset of puberty.
An accurate exposition of the sharīʿah law of marriage and divorce can be found in al-Marghinānīs Al-hidāyah, a twelfth-century source book of Ḥanafī law, translated by Charles Hamilton as The Hedaya, or Guide, 4 vols., 2d ed. (Lahore, 1957). A source book on the law of inheritance is Sirāj al-Dīn al-Sajāwandi's Al-sirājīyah, the text and translation of which will be found in a modern work by al-haj Mahomet Ullah ibn S. Jung, The Muslim Law of Inheritance (Allahabad, 1934). The whole range of personal law is treated by D. F. Mulla's Principles of Mahomedan Law, 16th ed. (Bombay, 1968), a well-known Ḥanafī law text that is also informative on the application of this law in India and Pakistan. F. B. Tyabji's Muslim Law: The Personal Law of Muslims in India and Pakistan, 4th ed. (Bombay, 1968) is skillfully classified and comprehensive on all the major schools of sharīʿah law. A. A. Fyzee's Outlines of Muhammadan Law, 4th ed. (Bombay, 1974) is more informative on Shīʿī personal law, and its introductory chapter gives background information on the sources and history of the sharīʿah. The best single book on the law of inheritance and its modern reforms remains Noel J. Coulson's Succession in the Muslim Family (Cambridge, U.K., 1971). A useful collection of the statutory laws of various Muslim countries, with special reference to modern reforms, can be found in Tahir Mahmood's Family Law Reform in the Muslim World (Bombay, 1972). Herbert J. Liebesny's Law of the Near and Middle East (Albany, N.Y., 1975) is also very useful on the application of sharīʿah law in various Muslim countries. For the status of women, see John L. Esposito, Women in Muslim Family Law (Syracuse, N.Y., 1982).
There are many good books in Arabic on the subject. Muḥammad abū Zahrah's Al-aḥwāl al-shakhṣīyah (Cairo, 1957) is written in readable style and deals with the whole range of the sharīʿah personal law. ʿAbd al-Raḥmān al-Sabūni's Madā ḥurriyat al-zawjayn fī al-ṭalāq, 2 vols., 2d ed. (Beirut, 1968) is most comprehensive on the sharīʿah law of divorce in its various schools. And finally, Muhammad Zayd al-Ibyāni's Sharh al-aḥkām al-sharīʿah fī al-aḥwāl al-shakhṣīyah, 3 vols. (Beirut, 1976), is a useful modern work on the whole range of the sharīʿah personal law.
M. Hashim Kamali (1987)
"Islamic Law: Personal Law." Encyclopedia of Religion. . Encyclopedia.com. (October 13, 2018). http://www.encyclopedia.com/environment/encyclopedias-almanacs-transcripts-and-maps/islamic-law-personal-law
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