“Now, Mr. Currie asks in the above extract, does such an essential difference exist between apostasy to a book—that is, to a kitabee faith—and apostasy to idol worship? Answering this question necessitates a few remarks upon the judgments above mentioned. According to Mahommedan law, a man may lawfully marry a kitabeeah, but marriage with a Pagan or polytheist is unlawful. But the principle in Mahommedan law is, that when one of the parties turns to a state of religion that would render the marriage contract illegal if it were still to be entered into, what was legal before is made void. A Mahommedan woman, becoming a kitabeeah, does not render the marriage void, for there is nothing to render the marriage contract illegal if it were still to be entered into; but if the Mahommedan woman becomes an idolatress, the marriage is void, for the woman has turned to a state of religion that would render the marriage contract illegal if it were still to be entered into; a Mahommedan woman, becoming a Christian, consequently, would not be separated from her husband, because she belongs to the religion of the book, that is, a kitabee faith. If a kitabeeah becomes an idolatress, the marriage is dissolved, but if she change from one religion to another, and still remain a kitabeeah, the marriage is not vitiated. So far the Oudh Court is correct in its decision, that the Mahommedan wife’s conversion to Christianity did not render the marriage null and void, but that a suit for restitution of conjugal rights would lie; and taking the case of C. having sexual intercourse with B. the wife of A. converted to Christianity, a conviction under Section 497, Indian Penal Code, would hold good. But with all deference, I do not think that the Oudh Court is correct when it states that ‘apostasy by the wife without the wish of the husband could not be entertained; in fact, that as regards her husband’s volition, the apostasy could not exist, and would not be recognised.’
“So far as regards a woman’s apostatising to a kitabee faith, this holds good; but if a woman turns to Paganism, ipso facto the marriage is void, and does not depend upon the volition of the husband (having regard to the principle we have adverted to above), so that the husband under such circumstances could not maintain a suit for conjugal rights, nor would a conviction hold good against C., under Section 497, Indian Penal Code for sexual intercourse with B., the wife of A., who has apostatised to Paganism. The decisions of the two Courts, however, seem correct, on the principles of Mahommedan law, as to the effect of a husband apostatising from Islām. By Mahommedan law, a marriage by a female Moslem with a man not of the Mahommedan faith is unlawful: applying the principle quoted before, the man having turned to a state of religion that would render the contract illegal if it were still to be entered into, the marriage is void. The apostasy of the husband dissolves the marriage tie; consequently there does exist an essential difference between apostasy of a man and of a woman, of the apostasy of the husband or the wife; also between apostasy to a faith in a book, that is, a revealed religion having a book of faith, and apostasy to the idol worship Mahommed and his followers renounce. The law allows a person the right to cease to be a Mahommedan in the fullest sense of the word, and to become a Christian, and to claim for himself and his descendants all the rights and obligations of a British subject.” (Hogg v. Greenway, &c., 2, Hyde’s Reports, 3. Manual of Laws relating to Muḥammadans and their Relations of Life.)
V. In addition to the forms of divorce already explained, there are three others of a peculiar nature, called k͟hulaʾ, mubāraʾah, and z̤ihār.
The form of divorce known as k͟hulaʾ, is when, a husband and wife disagreeing, or for any other cause, the wife, on payment of a compensation or ransom to her husband, is permitted by the law to obtain from him a release from the marriage tie. The k͟hulaʾ is generally effected by the husband giving back the dower or part thereof. When the aversion is on the part of the husband, it is generally held that he should grant his wife’s request without compensation; but this is purely a matter of conscience, and not of law.
Mubāraʾah is a divorce which is effected by a mutual release.
Z̤ihār, from z̤ahr, “back,” is a kind of divorce which is effected by a husband likening his wife to any part or member of the body of any of his kinswomen within the prohibited degree. As for example, if he were to say to his wife, “Thou art to me like the back of my mother.” The motive of the husband in saying so must be examined, and if it appear that he meant divorce, his wife is not lawful to him until he have made expiation by freeing a slave, or by fasting two months, or by feeding sixty poor men. (See Qurʾān, [Sūrah lviii. 4].)
(For the Sunnī Law of Divorce, see the Hidāyah and its Commentary, the Kifāyah; Durru ʾl-Muk͟htār and its Commentary, the Raddu ʾl-Muk͟htār; the Fatāwā-i-ʿĀlamgīrī; Hamilton’s English Edition, Hidāyah; Tagore Law Lectures, 1873.)
VI. The Shīʿah law of Divorce differs only in a few particulars from that of the Sunnīs. According to Shīʿah law, a man must be an adult of understanding, of free choice and will, and of design and intention, when he divorces his wife. A marked contrast to the licence and liberty allowed by the Sunnī law. Nor can the Shīʿah divorce be effected in any language of a metaphorical kind. It must be express and be pronounced in Arabic (if the husband understand that language), and it must be spoken and not written. A divorce amongst the Shīʿahs does not take effect if given implicatively or ambiguously, whether intended or not. It is also absolutely necessary that the sentence should be pronounced by the husband in the presence of two just persons as witnesses, who shall hear and testify to the wording of the divorce.
(For the Shīʿah law of divorce, see Shirʿatu ʾl-Islām; Taḥrīru ʾl-Aḥkām; Mafātīḥ; Mr. Neil Baillie’s Digest of Muḥammadan Law; Imamiah Code; Tagore Law Lectures, 1874.)
VII. Compared with the Mosaic Law. When compared with the Mosaic law, it will be seen that by the latter, divorce was only sanctioned when there was “some uncleanness” in the wife, and that whilst in Islām a husband can take back his divorced wife, in the law of God it was not permitted. See [Deut. xxiv. 1–4].