Ẕimmīs do not subject themselves to the laws of Islām, either with respect to things which are merely of a religious nature, such as fasting and prayer, or with respect to those temporal acts which, though contrary to the Muḥammadan religion, may be legal by their own, such as the sale of wine or swine’s flesh. The construction of places of worship in the Muslim territory is unlawful for them, unless within their own houses, but if churches and synagogues originally belonging to Christians and Jews be destroyed or fall to decay, they are at liberty to rebuild and repair them. This is the rule with regard to cities, because, as the tokens of Islām, such as public prayer, festivals, &c., appear there, Ẕimmīs should not be permitted to exhibit the tokens of infidelity in the face of them; in villages and hamlets, on the other hand, where the tokens of Islām do not appear, there is no occasion to prevent the construction of Christian and Jewish places of worship. (See Hamilton’s Hidāyah, vol. ii. p. 219.)
Save some slight restrictions with regard to dress and equipage, Ẕimmīs are held in all transactions of daily life pretty much on a footing of equality with Muslims. Like children, women and slaves, a Ẕimmī has no legal share in the booty, but only a discretionary allowance out of it, if he has taken part in the fight. If he has acted as a guide, and his services as such have been attended with any eminent advantage, he may, however, receive even a larger share than a Muḥammadan combatant. (Hamilton’s Hidāyah, vol. ii. p. 178.)
Every marriage that is lawful between two Muslims, is lawful between two Ẕimmīs. Marriages that are not lawful between two Muslims are of several kinds. Of these there is the marriage without witnesses. When a Ẕimmī marries a Ẕimmīyah without witnesses, and such marriages are sanctioned by their religion, the marriage is lawful. So that, if they should afterwards embrace the Muslim faith, the marriage would still be established. And in like manner, if they should not embrace that faith, but should both claim from the judge the application of the rules of Islām, or one of them should make such a claim, the judge is not to separate them. There is also the marriage of a woman during her ʿiddah on account of another man [[ʿIDDAH]]. When a Ẕimmī marries a woman in her ʿiddah for another man, that man being a Muslim, the marriage is invalid, and may be objected to before their adoption of the Muḥammadan religion, even though their own religion should recognise the legality of marriage in the state of ʿiddah; but if the ʿiddah were rendered incumbent on the woman on account of an infidel, and marriages in a state of ʿiddah are accounted lawful in the religion of the parties, it cannot be objected to while they remain in a state of infidelity, according to general agreement. If under these circumstances they afterwards adopt the Muslim faith, the marriage remains fixed and established, according to Abū Ḥanīfah, whose decision is considered valid in spite of the different opinions of Abū Yūsuf and Muḥammad, and the judge is not to separate them, though both of them or only one of them should adopt the faith, or both or only one of them should bring the matter before the judge. In the Mabsūt̤ it is stated that the difference between the masters was only when the reference to the judge, or the adoption of the faith, takes place during the subsistence of the ʿiddah; but where it does not take place till after the ʿiddah has expired, the parties are not to be separated, according to all their opinions. (Baillie’s Digest of Moohummudan Law, Hanifeea, p. 178.)
If a Ẕimmī marry a Ẕimmīyah, making the dower consist of wine or pork, and one or both should afterwards embrace the faith before the wife has obtained seisin, according to Abū Ḥanīfah, the woman is entitled to receive the actual article, if it has been “identically specified,” but if not, the estimated value of the wine, or her proper dower in lieu of the pork, as the case may be. Abū Yūsuf maintains that she is to have her proper dower, and Muḥammad the estimated value in all cases. If a Christian Ẕimmī marry a Christian Ẕimmīyah, without specifying any dower, or on a specified dower consisting of carrion (flesh of an animal not lawfully slain), such as may be deemed lawful by members of their profession, and have sexual intercourse with her, or divorce her without consummation, or die without consummation, according to Abū Ḥanīfah, she is not entitled to any dower, although both parties may have embraced the faith in the interim; but according to Abū Yūsuf and Muḥammad, she will take her proper dower if the husband consummate the marriage, or die without consummation, and will be entitled to a present if she be divorced without consummation. (A. Rumsey, Moohummudan Law of Inheritance, p. 373.)
When one of an infidel married couple embraces the Muḥammadan faith, Islām is to be presented to the other, and if the other adopt it, good and well; if not, they are to be separated. If the party is silent and says nothing, the judge is to present Islām to him time after time, till the completion of three, by way of caution. And there is no difference between a discerning youth and one who is adult; so that a separation is to be made equally on the refusal of the former as of the latter, according to Abū Ḥanīfah and the Imām Muḥammad. But if one of the parties be young and without sufficient discernment, it is necessary to wait till he has understanding; and when he has understanding, Islām is then to be presented to him; and if he adopt it, well; if not, a separation is to be made without waiting for his arriving at puberty. And if he be mad, Islām is to be presented to his parents; and if they, or one of them, should embrace it, good and well; if not, a separation is to be made between the married parties. If the husband should embrace the faith and the wife refuse, the separation is not accounted repudiation; but if the wife should embrace the faith and the husband decline, the separation in consequence is considered a repudiation, since the cause of separation proceeds from him. When a separation takes place between them by reason of refusal, and it is after consummation, she is entitled to the whole dower; and if it is before consummation and through his refusal, she is entitled to half the dower; but if through her own refusal, she has no dower at all. If, however, the husband of a Kitābīyah adopt the faith, their marriage remains unaffected in accordance with the general principle, that the marriage between a Muslim and a Kitābīyah is originally lawful. (Baillie, Hanifeea Code, p. 180.)
When a Ẕimmī has repudiated his Ẕimmīyah wife three times, and then behaves to her as he had done before the repudiation, without marrying her again, or saying the words of the contract over her; or when his wife has obtained a k͟hulʿ or release [[KHULʿ]], and he then acts to her as before without renewing the contact—they are to be separated, even though they should not bring the matter to the judge. But if he repudiates her three times, and then renews the contract of marriage with her without her being married to another, they are not to be separated. (Ib.)
The child follows the religion of the better of its parents. Hence, if one of them be a Muslim, the child is of the Muslim religion. The mother could not be so ab initio, but only in consequence of conversion to the Muḥammadan faith, for a Muslim woman cannot lawfully be the wife of any other than a man of her own religion. So also, if one of them should subsequently embrace Islām, having an infant child, the infant would become Muslim by virtue of the parent’s conversion, that is, when there is no difference of dār, by both of the parents being either within the Dāru ʾl-Islām or the Dāru ʾl-Ḥarb, or by the child being in the former at the time that its parent embraces the Muslim faith in the foreign country, for he then becomes constructively one of the Muslim people; but when the child is in the foreign country, and the parent within the Muslim territory, and he adopt the faith there, the child does not follow him, and is not a Muslim. A Majūsī is worse than a Kitābī; and if one of the parents be a Majūsī and the other Kitābī, the child is a Kitābī, and may be lawfully married by a Muslim, to whom also things slaughtered by the child would be lawful.
Generally, an infidel cannot inherit from a believer, nor, on the other hand, can a believer inherit from an infidel; but infidel subjects of a Muslim state can inherit from one another. And it is immaterial, for such a purpose, whether they be of the same religion or not; all unbelievers being, in this respect, considered as of one class. A Muslim may, however, make a bequest to a Ẕimmī and a Ẕimmī to a Muslim, as well as to another infidel, whether of the same or of a different religion, not being a hostile alien. The testamentary power of a Ẕimmī is subject to the same limitations as that of a Muslim, so that bequests to a person entitled by inheritance are invalid, and bequests to any other person are invalid so far as they exceed one-third of the testator’s property. This for the reason that, on entering into the compact of Ẕimmah, he has agreed to conform to the laws of Islām in all temporal concerns. (See A. Rumsey, Moohummudan Law of Inheritance, p. 222.)
The will of a Ẕimmī for secular purposes is valid, according to all opinions. Other than secular purposes are of four different kinds. First, there are purposes which are qurbah, or a means of approach to Almighty God, both with Ẕimmīs and Muslims; and bequests for these purposes are valid, whether they be to a set of particular persons or not. Thus, when a Kitābī has directed, by his will, that slaves be purchased and emancipated on his account, whether with or without a specification of individuals, or that a third of his property be bestowed in charity on beggars and the indigent, or expended in lighting a lamp in the Baitu ʾl-Muqaddas or Holy Temple of Jerusalem, or in making war against the infidel Tartars, the bequest is valid.
Second, there are purposes which are sinful, both with the Ẕimmīs and the Muslims; and bequests for these purposes are valid, if they are to a set of particular persons, and the bequest is a gift without regard to the purposes; but if the persons are not particularised, the bequest is void. If, therefore, a Ẕimmī should bequeath, for instance, a third of his property for the support of dissolute women, singers, and the like, the bequest is valid, if such persons are particularised and it is a gift to them; but if they are not particularised, it is void.