Marriage and Divorce Laws of the World Part 23

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 const.i.tute 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 inst.i.tutions 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 G.o.d 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 circ.u.mstances, the woman becomes ent.i.tled 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 princ.i.p.al conditions which are requisite for a proper marriage are: understanding, p.u.b.erty 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, p.u.b.erty 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 p.r.o.nounces 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, G.o.d is Indulgent, Merciful!"

POLYGAMY.--According to Mohammedanism polygamy is a divine inst.i.tution, 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 G.o.d! 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 s.p.a.ce of four months and ten days.

In the event of her husband's death a wife is ent.i.tled 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.