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2. The Regulation of Personal Status

The fiqh books, after dealing with ‘ibādāt--the Law of Man's Relations with God--usually pass to mu‘āmalāt, or the laws governing human relations. Of these the most universally observed by Muslims are those of personal status--marriage, divorce, fosterage, etc. They are involved, and will only be suggested here. These sections are taken from the Hidāya of Burhān al-Dīn al-Marghinānī, of Farghāna in Central Asia (died A.H. 593/A.D. 1197), one of the authoritative works of this school. The Ḥanafī school claims as its founder Abū Ḥanīfa (died A.H. 150/A.D. 767), the systematizer of the old school of Kūfa in Iraq. His pupils, Abū Yūsuf the chief justice of Harūn al-Rashīd, and al-Shaybānī, had perhaps more to do with founding the school that bears his name. Since it developed in Baghdad in close association with the early ‘Abbāsīs, the Ḥanafī school was always concerned with questions of a practical as well as of a theoretical nature; it is characterized by its reasoned approach and logical consistency and a certain wideness of

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view which has recommended it to Muslim rulers. It was the chief law-school of the Ottoman and Mughal empires, and today is found chiefly in Turkey, Syria, Central Asia, Afghanistan, India and Pakistan.


Nikāḥ or Marriage: Nikāḥ in its primitive sense means carnal conjunction. . . . In the language of the Law it implies a particular contract used for the purpose of legalizing generation.

Marriage is contracted--that is to say, is effected and legally confirmed--by means of declaration and consent. . . . Where both the parties are Muslims it cannot be contracted but in the presence of two male witnesses or of one man and two women, who are sane, adult, and Muslim . . . evidence is an essential condition of marriage . . . against Mālik, who maintains that in marriage general knowledge is a condition and not positive evidence. It is necessary that the witnesses be free, the evidence of slaves being in no wise valid. . . . If a Muslim marries a woman of the People of the Book in the presence of two men of her kind it is lawful, according to Abū Yūsuf and Abū Ḥanīfa. Muhammad and Zufar hold it is not legal, because their testimony . . . amounts to evidence and the evidence of unbelievers regarding Muslims is illegal . . . the argument of the two elders in reply to this objection is that evidence is necessary . . . merely in order to establish the husband's right of cohabitation, which is in this case the object. . . .

It is not lawful for a man to marry his foster-mother or his foster-sister, the Almighty having commanded "Marry not your mothers who have suckled you or your sisters by foster-age," and the Prophet also declared "Everything is prohibited by reason of fosterage which is so by reason of kindred."

It is not lawful to marry and cohabit with two women being sisters, neither is it lawful for a man to cohabit with two sisters in virtue of a right of possession (as being his slaves) because the Almighty has declared that such cohabitation with sisters is unlawful.

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A master may not marry his own slavewoman (except he set her free) or a mistress her bondsman, for marriage was instituted with a view that the fruit might belong equally to the father and the mother, and marriage and servitude are contradictory to each other. . . .

Marriage with Women of the Book is legal. . . . It is unlawful to marry a Zoroastrian woman or a polytheist (until she becomes a Muslim). . . .

It is lawful for a Muslim who is free to marry a female slave, whether a Muslim or Woman of the Book (if she is not his own); his seed is born then in bondage. . . . It is unlawful for a man already married to a free woman to marry a slave; the Prophet (said): "Do not marry a slave after a free woman." Shāfi‘ī says the marriage of a slave after a free woman is lawful to a man who is a slave, and Mālik likewise maintains it is lawful, providing it is with the free woman's consent. The above ḥadīth however is an answer to both as it is general and unconditional.

Moreover the legal marriage is a blessing to men and women equally, but the enjoyment of it is by bondage restricted to one half, inasmuch as slaves can have only two wives whereas free men may legally have four. . . .

A temporary marriage, where a man marries a woman (for a contract of) ten days (for instance), is null. . . . 10

A woman who is adult and of sound mind may be married by virtue of her own consent although the contract may not have been made or acceded to by her guardians, and this whether she be a virgin or otherwise. (Though) Abū Yūsuf says her marriage cannot be contracted except through her guardian. Mālik and Shāfi‘ī assert that a woman can by no means contract herself whether with or without the consent of her guardians (it is they who must do the contracting) nor is she competent to act as a matrimonial agent for anyone . . . if the performance of this contract were in any respect committed to women its end might be defeated (they argue), women being of weak reason and open to flattery and deceit. . . . But an adult virgin may not be forced into marriage against her will. 11

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The marriage of a boy or girl under age by the authority of their paternal kindred is lawful, the Prophet having declared "Marriage is committed to the paternal kindred. . . ." 12

Marriage without a dower [mahr: given to the bride by the groom] is valid . . . but this is contrary to the teaching of Mālik. . . . If a man marry a woman without specifying any dower . . . she is thereby entitled to the (minimum legal dower) mahr mathl . . . it shall not consist of less than ten dirhams [silver coins] . . . . 13

If a man have two or more wives, all free women (he must cohabit equally with them) because the Prophet has said "The man who has two wives and who inclines particularly to one of them shall on the day of judgement be paralyzed on one side," and it is recorded by ‘A’isha that he made such equal partition of cohabitation among his wives, saying, "O God, I thus make equal partition as to that which is in my power; do not therefore bring me to account for that which is not in my power," (by which he means the affections, these not being optional). . . . 14


Divorce: The most laudable divorce is where the husband repudiates his wife by a single formula with her term of ritual purity (not during the menstrual period) and leaves her (untouched) to the observance of the ‘idda (period of waiting to ascertain she is not with child). This is held to be most laudable for two reasons: (1) The Companions of the Prophet held this to be a more excellent method. . . . (2) In pursuing this method the husband leaves it within his power to recover his wife without shame by reversing the divorce during her ‘idda (it is final only after three pronouncements); the method is moreover least injurious to the woman, as she remains (married to her husband until after the expiration of the ‘idda). . . . Express divorce is where a husband delivers the sentence in direct and unequivocal terms, as "I have divorced you," or "you are divorced." (To be final, the divorce must be pronounced three times.) This effects a reversible divorce such as leaves it in his power to take her back before the expiration of the ‘idda15


121:10 Burhān al-Dīn al-Marghinānī, Al-Hidāya (2nd ed.; London, 1870), translated by Charles Hamilton, pp. 25-33. From reprint of 2nd ed. (Lahore, 1957).

121:11 Ibid., p. 34.

121:12 Ibid., p. 36.

121:13 Ibid., pp. 44, 45.

121:14 Ibid., p. 66.

121:15 Ibid., p. 72.

Next: 3. The Ordinance of the Community