Evidence with respect to Wills.
Project Gutenberg EPUB3 edition
Hughes, Thomas Patrick
It is also allowed by the law, of one wife to give up her right as regards partition of time to any other of her husband’s wives. But if a woman give up her right, she is not at liberty to resume it. (Durru ʾl-Muk͟htār, in loco.)
The position of a wife as regards the law of divorce, is treated under the article DIVORCE.
We are indebted to Moulvi Syed Ameer Ali, M.A., LL.B., a Muḥammadan Barrister-at-Law, and Presidency Magistrate of Calcutta, for the following able exposition of the position of wives under the Muslim law:—
“Prior to the Islâmic legislation, and especially among the pagan Arabs, women had no locus standi in the eye of the law. The pre-Islâmic Arab customs as well as the Rabbinical law, dealt most harshly with them. (3 Caussin de Perceval, Hist. des. Arabes, p. 337.)
“The Koran created a thorough revolution in the condition of women. For the first time in the history of Oriental legislation, the principle of equality between the sexes was recognised and practically carried into effect. ‘The women,’ says the Koran, ‘ought to behave towards their husbands in like manner as their husbands should behave towards them, according to what is just.’ (Koran, chap. ii., v. 228.) And Mohammed in his discourse on Jabl-i-Arafât, emphasised the precept by declaring in eloquent terms, ‘Ye men, ye have rights over your wives, and your wives have rights over you.’ (Ibn Hishâm.) In accordance with these precepts the Mahommedan law declares equality between the married parties to be the regulating principle of all domestic relationship. Fidelity to the marriage bed is inculcated on both sides; and unfaithfulness leads to the same consequences, whether the delinquent be the husband or the wife. Chastity is required equally from man and woman.
“The husband is legally bound to maintain his wife and her domestic servants, whether she and her servants belong to the Moslem faith or not. This obligation of the husband comes into operation when the contract itself comes into operation, and the wife is subjected thereby to the marital control. It continues in force during the conjugal union, and in certain cases even after it is dissolved.
“The maintenance (nafkah) of a wife includes everything connected with her support and comfort, such as food, raiment, lodging, &c., and must be provided in accordance with the social position occupied. (1 Fatâwa-i-Alamgîrî, p. 737; 1 Fatâwa-i-Kâzi Khân; Jâma-ush-Shattât; Fusûl-Imâdiyah; Mafâtîh; 1 Hed., Eng. Trans., p. 392.)
“The wife is not entitled merely to maintenance in the English sense of the word, but has a right to claim a habitation for her own exclusive use, to be provided consistently with the husband’s means.
“If the wife, however, is a minor, so that the marriage cannot be consummated, according to the Hanafî and the Shiah doctrines, there is no legal obligation on the husband’s part to maintain her. (1 Fatâwa-i-Alamgîrî, p. 773; Kanz-ud-Dakâik; 1 Hed., Eng. Trans., p. 394; Jâma-ush-Shattât.)
“With the Shâfeïs it makes no difference, in the obligation of the husband to maintain his wife, whether the wife be a minor or not. (Kitâb-ul-Anwâr; 1 Hed., Eng. Trans., p. 394.)
“Nor is a husband, under the Hanafî and the Shiah law, entitled to the custody of the person of a minor wife whom he is not bound to maintain. (In re Khatija Bibi, 5 Bengal Law Reports, O. C. J. 557.)
“If the husband be a minor and the wife an adult, and the incapacity to complete or consummate the contract be solely on his part, she is entitled to maintenance. (1 Hed., Eng. Trans., p. 395; Fusûl-i-Imâdiyah; 1 Fatâwa-i-Kâzi Khân, p. 480; Jâma-ush-Shattât.)
“It makes no difference in the husband’s liability to maintain the wife whether he be in health or suffering from illness, whether he be a prisoner of war or undergoing punishment, ‘justly or unjustly,’ for some crime, whether he be absent from home on pleasure or business, or gone on a pilgrimage. (1 Fatâwa-i-Alamgîrî, p. 733.) In fact, as long as the status of marriage subsists, and as long as the wife is subject to the marital power, so long she is entitled to maintenance from him. Nor does she lose her right by being afflicted with any disease. (1 Fatâwa-i-Alamgîrî, p. 734; Jâma-ush-Shattât.)
“When the husband has left the place of the conjugal domicil without making any arrangement for his wife’s support, the Kazi is authorised 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. (1 Fatâwa-i-Alamgîrî, p. 750.)
“A wife may contract debts for her support during the husband’s absence, and if such debts are legitimate, contracted bonâ fide for her support, the creditors have a “right of recovery” against the husband. (Nail-ul-Marâm.) In the same way, if the husband be unable for the time being to maintain his wife, ‘it would not form a cause for separation,’ says the Hedayah, ‘but the magistrate may direct the woman to pledge her husband’s credit and procure necessaries for herself, the husband remaining liable for the debts.’ (1 Hed., Eng. Trans., p. 297.)
“When the husband is absent and has left real property either in the possession of his wife or of some other person on her behalf, the wife is not entitled to sell it for her support, though she may raise a temporary loan on it, which the husband will be bound to discharge, provided the mortgage was created bonâ fide for her or her children’s support, and did not go beyond the actual necessity of the case. Under such circumstances the mortgagee is bound to satisfy himself that the money advanced is applied legitimately to the support of the family of the absent husband. (1 Fatâwa-i-Alamgîrî, p. 737.)
“When the woman abandons the conjugal domicil without any valid reason, she is not entitled to maintenance. (1 Fatâwa-i-Alamgîrî, p. 733; Fusûl-i-Imâdiyah; Jâma-ush-Shattât.) Simple refractoriness, as has been popularly supposed, does not lead to a forfeiture of her right. If she live in the house but do not obey the husband’s wishes, she would not lose her right to her proper maintenance. If she leave the house against his will without any valid reason, she would lose her right, but would recover it on her return to the conjugal domicil. (Fatâwa-i-Alamgîrî; Jâma-ush-Shattât; Kitâb-min lâ-Euhazzar al-Fakîh.)
“What is a valid and sufficient reason for the abandonment of the conjugal domicil is a matter for the discretion of the Kazi or judge. As a general principle and one which has been adopted and enforced by the Kazis’ mahkamas in Algeria, a wife who leaves her husband’s house on account of his or his relations’ continued ill-treatment of her, does not come within the category of nâshizah and continues entitled to her maintenance.
“A woman who is imprisoned for some offence, or is undergoing incarceration in the civil jail for non-payment of a debt, or who goes on a voyage or pilgrimage without her husband’s consent, has no right to claim any maintenance during her absence. (1 Fatâwa-i-Alamgîrî, p. 734.)
“Among the Shiahs, if she goes on an obligatory pilgrimage, even without her husband’s consent, she is nevertheless entitled to maintenance.
“The husband’s liability to support the wife continues during the whole period of probation, if the separation has been caused by any conduct of his, or has taken place in exercise of a right possessed by her. The husband would not, however, be liable to support the wife during the iddat, if the separation is caused by her misconduct. (Fatâwa-i-Alamgîrî, p. 746; Jâma-ush-Shattât; 1 Fatâwa-i-Kâzi Khân, p. 481.)
“If she is pregnant at the time of separation her right remains intact until she is confined of the child.
“The Hedâya seems to imply that a woman is not entitled to maintenance during the period of probation she observes on the death of her husband. (1 Hed. p. 407.) As the Koran, however, distinctly says, ‘Such of you as shall die and leave wives ought to bequeath to them a year’s maintenance,’ several jurists have held that a widow has a right to be maintained from the estate of her husband for a year, independently of any share she may obtain in the property left by him. This right would appertain to her whether she be a Moslemah or non-Moslemah.
“In the case of probation (iddat) observed by a woman on the death of her husband, the Sunnis calculate the period from the actual date of his decease; the Shiahs from the day on which the wife receives the news of the death.
“According to the Sunnis, the liability of the husband to maintain a pregnant wife from whom he has separated ceases at her confinement. (1 Hed. p. 360.) The Shiahs, on the other hand, hold that the liability lasts for the same period after confinement as if the woman was not enceinte. (Jâma-ush-Shattât.)
“If the husband be insane, the wife is entitled, according to the Shâfeï doctrines and the views of the compilers of the Fatâwa-i-Alamgîrî, to maintenance for the period of one year, which is fixed by the Kazi in order to discover whether the insanity is curable or not. The Mâlikîs, with whom the author of the Hedâya seems to agree, deny to the wife the right of asking for a dissolution of the marriage tie on the ground of the husband’s insanity. Among them the wife, therefore, retains the right of maintenance during the insanity of her husband, however long continued. With the Shiahs the wife is entitled to a cancellation of the marriage contract if the husband’s insanity be incurable. Should she exercise this right and dissolve the marriage, her right to maintenance ceases.
“The Mahommedan law lays down distinctly (1) that a wife is bound to live with her husband, and to follow him wherever he desires to go; (2) 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 wife cannot refuse to live with her husband on pretexts like the following:—
“(1.) That she wishes to live with her parents.
“(2.) That the domicil chosen by the husband is distant from the home of her father.
“(3.) That she does not wish to remain away from the place of her birth.
“(4.) That the climate of the place where the husband has established his domicil is likely to be injurious to her health.
“(5.) That she detests her husband.
“(6.) That the husband ill-treats her frequently (unless such ill-treatment is actually proved, which would justify the Kazi to grant a separation).
“The obligation of the woman, however, to live with her husband is not absolute. The law recognises circumstances which justify her refusal to live with him. For instance, if he has habitually ill-treated her, if he has deserted her for a long time, or if he has directed her to leave his house or even connived at her doing so, he cannot require her to re-enter the conjugal domicil or ask the assistance of a court of justice to compel her to live with him. The bad conduct or gross neglect of the husband is, under the Mussulman law, a good defence to a suit brought by him for restitution of conjugal rights.
“In the absence of any conduct on the husband’s part justifying an apprehension that, if the wife accompanied him to the place chosen by him for his residence, she would be at his mercy and exposed to his violence, she is bound by law to accompany him wherever he goes. At the same time the law recognises the validity of express stipulations, entered into at the time of marriage, respecting the conjugal domicil. If it be agreed that the husband shall allow his wife to live always with her parents, he cannot afterwards force her to leave her father’s house for his own. Such stipulation in order to be practically carried into effect, must be entered in the deed of marriage; a mere verbal understanding is not sufficient in the eye of the law.
“If the wife, however, once consent to leave the place of residence agreed upon at the time of marriage, she would be presumed to have waived the right acquired under express stipulation, and to have adopted the domicil chosen by the husband. If a special place be indicated in the deed of marriage as the place where the husband should allow the wife to live, and it appear subsequently that it is not suited for the abode of a respectable woman, or that injury is likely to happen to the wife if she remain there, or that the wife’s parents were not of good character, the husband may compel the wife to remove from such place or from the house of such parents.
“The husband may also insist upon his wife accompanying him from one place to another, if the change is occasioned by the requirements of his duty.
“Every case in which the question of conjugal domicil is involved will depend, says De Ménerville, upon its own special features, the general principle of the Mussulman law on the subject being the same as in other systems of law, viz. that the wife is bound to reside with her husband, unless there is any valid reason to justify her refusal to do so. The sufficiency or validity of the reasons is a matter for the consideration of the Kazi or judge, with special regard to the position in life of the parties and the usages and customs of the particular country in which they reside.”
Faqīr Jani Muḥammad Asʿad, the author of the Ak͟hlāq-i-Jalālī, gives the following sage advice, which expresses very much the ordinary Oriental view of the question:—