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.)