I.— The Validity of Marriage

Muslims are permitted to marry four free women, and to have as many slaves for concubines as they may have acquired. See Qurʾān, Sūrah iv. 3 : “Of women who seem good in your eyes, marry two, or three, or four; and if ye still fear that ye shall not act equitably, then one only; or the slaves whom ye have acquired.” [ WIVES .] Usufructory or temporary marriages were sanctioned by the Prophet, but this law is said by the Sunnīs to have been abrogated, although it is allowed by the Shīʿahs, and is practised in Persia in the present day. [ MUTʿAH .] These temporary marriages are undoubtedly the greatest blot in Muḥammad’s moral legislation, and admit of no satisfactory apology. Marriage, according to Muḥammadan law, is simply a civil contract, and its validity does not depend upon any religious ceremony. Though the civil contract is not positively prescribed to be reduced to writing, its validity depends upon the consent of the parties, which is called ījāb and qabūl , “declaration” and “acceptance”; the presence of two male witne es (or one male and two female witne es); and a dower of not le than ten dirhams, to be settled upon the woman. The omi ion 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. (A dower suitable to the position of the woman is called Mahru ʾl-mis̤l .) Liberty is allowed a woman who has reached the age of puberty, to marry or refuse to marry a particular man, independent of her guardian, who has no power to dispose of her in marriage without her consent or against her will; while the objection is reserved for the girl, married by her guardian during her infancy, to ratify or di olve the contract immediately on reaching her majority. When a woman, adult and sane, elects to be married through an agent ( wakīl ), she empowers him, in the presence of competent witne es, to convey her consent to the bridegroom. The agent, if a stranger, need not see her, and it is sufficient that the witne es, who see her, satisfy him that she, expre ly or impliedly , consents to the proposition of which he is the bearer. The law respects the modesty of the sex, and allows the expre ion of consent on the part of the lady by indirect ways, even without words. With a virgin, silence is taken as consent, and so is a smile or laugh. Mr. Syed Ameer Ali says:— “The validity of a marriage under the Muhammadan law depends on two conditions: first, on the capacity of the parties to marry each other; secondly, on the celebration of the marriage according to the forms prescribed in the place where the marriage is celebrated, or which are recognised as legal by the customary law of the Mu ulmans. It is a recognised principle that the capacity of each of the parties to a marriage is to be judged of by their respective lex domicil i i . ‘If they are each, whether belonging to the same country or to different countries, capable according to their lex domicil i i of marriage with the other, they have the capacity required by the rule under consideration. In short, as in other contracts, so in that of marriage, personal capacity must depend on the law of domicil.’ “The capacity of a Mu alman domiciled in England will be regulated by the English law, but the capacity of one who is domiciled in the Belâd-ul-Islâm ( i.e . a Muhammadan country), by the provisions of the Mu alman law. It is, therefore, important to consider what the requisite conditions are to vest in an individual the capacity to enter into a valid contract of marriage. As a general rule, it may be remarked, that under the Islâmic law, the capacity to contract a valid marriage rests on the same basis as the capacity to enter into any other contract. ‘Among the conditions which are requisite for the validity of a contract of marriage (says the Fatâwa-i-Alamgîrî , p. 377), are understanding, puberty, and freedom, in the contracting parties, with this difference, that whilst the first requisite is e entially nece ary for the validity of the marriage, as a marriage cannot be contracted by a majnûn ( non compos ment is ), or a boy without understanding, the other two conditions are required only to give operation to the contract, as the marriage contracted by a (minor) boy (po e ed) of understanding is dependent for its operation on the consent of his guardian.’ Puberty and discretion constitute, accordingly, the e ential conditions of the capacity to enter into a valid contract of marriage. A person who is an infant in the eye of the law is disqualified from entering into any legal transactions ( ta arufât-i-shariyeh — taṣarrufāt-i-sharīʿah ), and is consequently incompetent to contract a marriage. Like the English common law, however, the Muhammadan law makes a distinction between a contract made by a minor po e ed of discretion or understanding and one made by a child who does not po e understanding. A marriage contracted by a minor who has not arrived at the age of discretion, or who does not po e understanding, or who cannot comprehend the consequences of the act, is a mere nullity. “The Muhammadan law fixes no particular age when discretion should be presumed. Under the English law, however, the age of seven marks the difference between want of understanding in children and capacity to comprehend the legal effects of particular acts. The Indian Penal Code also has fixed the age of seven as the period when the liability for offences should commence. It may be a umed, perhaps not without some reason, that the same principle ought to govern cases under the Muhammadan law, that is, when a contract of marriage is entered into by a child under the age of seven, it will be regarded as a nullity. It is otherwise, however, in the case of a marriage contracted by a person of understanding. ‘It is valid,’ says the Fatâwa , ‘though dependent for its operation on the consent of the guardian.’ “A contract entered into by a person who is insane is null and void, unle it is made during a lucid interval. A slave cannot enter into a contract of marriage without the consent of his master. The Mu alman lawyers, therefore, add freedom ( hurriyet ) as one of the conditions to the capacity for marriage. “Majority is presumed, among the Hanafis and the Shiahs, on the completion of the fifteenth year, in the case of both males and females, unle there is any evidence to show that puberty was attained earlier. “Besides puberty and discretion, 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, or so related to or connected with each other as to make their union unlawful.” (See Syed Ameer Ali’s Personal Law of the Muhammadans , p. 216.) With regard to the consent of the woman, Mr. Syed Ameer Ali remarks:— “No contract can be said to be complete unle the contracting parties understand its nature and mutually consent to it. A contract of marriage also implies mutual consent, and when the parties see one another, and of their own accord agree to bind themselves, both having the capacity to do so, there is no doubt as to the validity of the marriage. Owing, however, to the privacy in which Eastern women generally live, and the difficulties under which they labour in the exercise of their own choice in matrimonial matters, the Mohammadan law, with somewhat wearying particularity, lays down the principle by which they may not only protect themselves from the cupidity of their natural guardians, but may also have a certain scope in the selection of their husbands. “For example, when a marriage is contracted on behalf of an adult person of either sex, it is an e ential condition to its validity that such person should consent thereto, or, in other words, marriage contracted without his or her authority or consent is null, by whomsoever it may have been entered into. “Among the Hanafis and the Shiahs, the capacity of a woman, who is adult and sane, to contract herself in marriage is absolute. The Shiah law is most explicit on this point. It expre ly declares that, in the marriage of a discreet female ( rashîdah ) who is adult, no guardian is required. The Hidâya holds the same opinion. A woman (it says) 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 saibbah . Among the Shafais and the Malikis, although the consent of the adult virgin is an e ential to the validity of a contract of marriage entered into on her behalf, as among the Hanafis and the Shiahs, she cannot contract herself in marriage without the intervention of a walî . (Hamilton’s Hidāyah , vol. i. p. 95.) “Among the Shafais, a woman cannot personally consent to the marriage. The presence of the walî , or guardian, is e entially nece ary to give validity to the contract. The walî ’s intervention is required by the Shafais and the Malikis to supplement the presumed incapacity of the woman to understand the nature of the contract, to settle the terms and other matters of a similar import, and to guard the girl from being victimised by an unscrupulous adventurer, or from marrying a person morally or socially unfitted for her. It is owing to the importance and multifariousne of the duties with which a walî is charged, that the Sunni law is particular in ascertaining the order in which the right of guardianship is po e ed by the different individuals who may be entitled to it. The schools are not in accord with reference to the order. The Hanafis entrust the office first to the agnates in the order of succe ion; then to the mother, the sister, the relatives on the mother’s side, and lastly to the Kazi. The Shafais adopt the following order: The father, the father’s father, the son (by a previous marriage), the full brother, the consanguineous brother, the nephew, the uncle, the cousin, the tutor, and lastly the Kazi; thus entirely excluding the female relations from the wilayet . The Malikis agree with the Shafais in confiding the office of guardian only to men, but they adopt an order slightly different. They a ign the first rank to the sons of the woman (by a former marriage), the second to the father; and then succe ively to the full brother, nephew, paternal grandfather, paternal uncle, cousin, manumit tor, and lastly to the Kazi. Among the Malikis and the Shafais, where the presence of the guardian at a marriage is always nece ary, the question has given birth to two different systems. The first of these considers the guardian to derive his powers entirely from the law. It consequently insists not only on his presence at the marriage, but on his actual participation in giving the consent. According to this view, not only is a marriage contracted through a more distant guardian invalid, whilst one more nearly connected is present, but the latter cannot validate a marriage contracted at the time without his consent, by according his consent subsequently. This harsh doctrine, however, does not appear to be forced in any community following the Maliki or Shafai tenets. The second system is diametrically opposed to the first, and seems to have been enunciated by Shaikh Ziâd as the doctrine taught by Malik. According to this system the right of the guardian, though no doubt a creation of the law, is exercised only in virtue of the power or special authorisation granted by the woman; for the woman once emancipated from the patria potestas is mistre of her own actions. She is not only entitled to consult her own interests in matrimony, but can appoint whomsoever she chooses to represent her and protect her legitimate interests. If she think the nearer guardian inimically inclined towards her, she may appoint one more remote to act for her during her marriage. Under this view of the law, the guardian acts as an attorney on behalf of the woman, deriving all his powers from her and acting solely for her benefit. This doctrine has been adopted by Al-Karkhi, Ibn al-Kâsim, and Ibn-i-Salamun, and has been formally enunciated by the Algerian Kazis in several consecutive judgments. When the walî preferentially entitled to act is absent, and his whereabouts unknown, when he is a prisoner or has been reduced to slavery, or is absent more than ten days’ journey from the place where the woman is residing, or is insane or an infant, then the wilayet pa es to the person next in order to him. The Hanafis hold that the woman is always entitled to give her consent without the intervention of a guardian. When a guardian is employed and found acting on her behalf, he is presumed to derive his power solely from her, so that he cannot act in any circumstances in contravention of his authority or instructions. When the woman has authorised her guardian to marry her to a particular individual, or has consented to a marriage proposed to her by a specific person, the guardian has no power to marry her to another. Under the Shiah law, a woman who is ‘adult and discreet,’ is herself competent to enter into a contract of marriage. She requires no representative or intermediary, through whom to give her consent. ‘If her guardians,’ says the Sharâya , ‘refuse to marry her to an equal when desired by her to do so, there is no doubt that she is entitled to contract herself, even against their wish.’ The Shiahs agree with the Hanafis in giving to females the power of representing others in matrimonial contracts. In a contract of marriage, full regard is to be paid to the words of a female who is adult and sane, that is, po e ed of sound understanding; she is, accordingly, not only qualified to contract herself, but also to act as the agent of another in giving expre ion either to the declaration or to the consent. The Mafâtih and the Jama-ush-Shattât , also declare ‘that it is not requisite that the parties through whom a contract is entered into should both be males, since with us (the Shiahs) a contract made through (the agency or intermediation of) a female is valid.’ To recapitulate. Under the Maliki and Shafai law, the marriage of an adult girl is not valid unle her consent is obtained to it, but such consent must be given through a legally authorised walî , who would act as her representative. Under the Hanafi and Shiah law, the woman can consent to her own marriage, either with or without a guardian or agent.” ( Personal Law of the Muhammadans , p. 233.)