2 Excerpts from the Fatawa’i ‘Alamgiri

These excerpts on marriage from the Fatawa-i ‘Alamgiri come from an English translation of parts of the compendium by Neil B. E. Baillie entitled A digest of Moohummudan law on the subjects to which it is usually applied by British courts of justice in India, 2nd ed. (London: Smith, Elder & Co., 1875). An open-access PDF version of the text, made possible by Google Book Search and the Internet Archive, is available here. Some transliterations have been modified to reflect current usage.

The intercourse of a man with a woman, who is neither his wife nor his slave, is unlawful, and prohibited absolutely. When there is neither the reality nor the semblance of either of these relations between the parties, their intercourse is termed zina, and subjects them both to hudd or a specific punishment for vindicating rights of Almighty God. The hudd of zina is stoning to death, if the offending party be a Moohsin, and scourging if not, with a hundred stripes for one who is free, and fifty for a slave. A Moohsin is a person who is free, sane, adult, a Muslim, and married by a valid contract that has been actually consummated, to one in whom the same qualities are combined. A Muslim is a believer in the unity of God, and the divine mission of Muhammad.

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Marriage is a contract which has for its design or object the right of enjoyment, and the procreation of children. But it was also instituted for the solace of life and is one of the prime or original necessities of man. It is therefore lawful in extreme old age after hope of offspring has ceased, and even in the last or death illness.

There are several conditions or requisites of a contract of marriage; among which are the following: —

1. Understanding, puberty, and freedom in the contracting parties.

2. A fitting subject; that is, a woman who may be lawfully contracted to the man.

3. The hearing by each of the parties of the words spoken by the other. […]

4. Shuhadut, or the presence of witnesses; which all the learned are agreed is requisite to the legality of marriage. This condition is peculiar to marriage, which is not contracted without the presence of witnesses, contrary to the case of other contracts, where their presence is required, not for contracting, but only with a view to manifestation before the judge.

There are four requites to the competency of the witnesses, viz., freedom, sanity, puberty, and Islam […] Hence marriage is not contracted in the presence of slaves; […] nor in the presence of insane persons, nor of minors, nor of infidels, when the marriage is between Muslims. […] the Islam of the witnesses is not a condition to the marriage of two infidels; for marriage between them may be contracted with two infidels for witnesses, whether they agree with, or differ from, the parties in religion. […] There must, however, in all cases, be more than one witness; but it is not necessary that all the witnesses should be males, for marriage may be contracted with one man and two women for witnesses; but not with women only without a man.

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The legal effects of marriage are as follows:—It legalizes the mutual enjoyment of the parties in a manner permitted by law or according to nature. It subjects the wife to the power of restraint; that is, it places her in such a condition that she may be prevented from going out and showing herself in public. It imposes on the husband the obligation of muhr or dower, and of maintaining and clothing his wife. It establishes on both sides the prohibitions of affinity and rights of inheritance. It obliges the husband to be just between his wives, and to have a due regard to their respective rights; while it imposes on them the duty of obedience when called to his bed, and confers on him the power of correction when they are disobedient or rebellious. It enjoins on him the propriety of associating familiarly with them with courtesy and kindness. And it forbids him to associate together, either as wives or concubines, two women who are sisters, or so connected with each other as to render their association unlawful.

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It is now lawful for any man to have more than four wives at the same time. And it is not lawful for a slave to marry more than two. […] It is lawful for a free man to keep and cohabit with as many female slaves as he pleases, but it is not permitted to a slave to keep and cohabit with any, even with the permission of his master.

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Abu Hanifa and Muhammad have said that it is lawful for a man to marry a woman pregnant by whoredom, though he must refrain from matrimonial intercourse with her till her delivery. Abu Yusuf, however, was of opinion that the marriage is not valid, but the fatwa is in accordance with the opinion of the two others. As it is not permitted to have connection with her, so also it is not permitted to solicit her.

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It is not lawful to marry [fire worshipers] nor idolatresses; and in this respect there is no difference between free women and slaves. Among the worshipers of idols are included the worshipers of the sun and stars, and images which they hold in reverence […] and persons of every creed by belief in which one is deemed a Kafir, or infidel. A Muslim is not to have carnal intercourse with an idolatress or a [fire worshiper] by right of property, but he may lawfully marry a Kitabbiyah, whether she be an enemy or a subject, free or a slave, though it is better to refrain. When a Muslim has married a Kitabbiyah he may restrain her from going to church or synagogue, and from taking wine into his house. But he cannot compel her to wash after her courses, childbirth, or other ceremonial pollution. When a Muslim marries a foreign Kitabbiyah in the Dar al-Harb, or a foreign country, the act is lawful but abominable; and if he should bring her out into the Dar al-Islam, or Muslim territory, they remain in a state of marriage. But if he should come out, leaving her in a foreign country, a separation takes place by reason of the difference of countries.

All who believe in a heavenly or revealed religion, and have a kitab, or book that has come down to them, such as the book of Abraham and Seth, and the psalms of David, are Kitabis, and intermarriage with them, or eating of meat slaughtered by them, is lawful.

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It is not lawful for an apostate to marry a woman who has apostatized, nor a female Muslim, nor an infidel by origin; and in like manner it is not lawful for a female apostate to marry with anyone.

The marriage of a female Muslim with an apostate or with a Kitabi is unlawful. Idolatresses and [fire worshipers] are lawful to all infidels except apostates. And Dhimmis, or infidel subjects, may lawfully marry with female Dhimmis, though of a different persuasion.