Marriage, Separation, Cancellation, Divorce, Repudiation
The law in a nutshell
Excerpted and unedited (therefore antiquated spellings) from the Introduction to Moohummudan Law by Neill Baillie ©1874

Marriage is merely a civil contract, and differs in some other important respects from the same contract in this country.  A few of these may be noticed in this place.  It confers no rights on either party over the property of the other.  The legal capacity of the wife is not to sink in that of the husband; she retains the same powers of using and disposing of her property, of entering into all contracts regarding it, and of suing and being sued; without his consent or concurrence, as if she were still unmarried.  She can even sue her husband her self, without the intervention of a trustee or next friend; and is in no respect under his legal guardianship.  On the other hand, he is not liable for her debts, though he is bound to maintain her, and he may divorce her at any time, without assigning any reason.  He may also have as many as four wives at one time.  A practice prevails in India which operates as a considerable check on the exercise of these powers of the husband.  It is usual for Mussulmans, even of the lowest orders, to settle very large dowers on their wives.  These are seldom exacted, so long as the parties live harmoniously together; but the whole dower is payable on the divorce or other dissolution of marriage, and a large part of it is usually made exigible at any time, so that a wife is enabled to hold the dower in terrorem over her husband; and divorce and polygamy, though perfectly allowable by the law, are thus very much in the nature of luxuries, which are confined to the rich.  The degrees of consanguinity and affinity within which marriage is prohibited are nearly the same as under the Mosaic law.  But under the Moohummudan law affinity may be contracted by illicit intercourse (25), as well as by marriage, and, in some instances, by irregular desires, accompanied by the sight or touch of the certain parts of the person  (ib.) To these grounds of prohibition must be added some that are peculiar to the Moohummudan law.  Thus, a man may not marry a woman related to him by faster fosterage, a prohibition which embraces not only the faster parents, but also all persons related to them within the prohibited degrees of consanguinity and affinity (194).  So also, a Mooslim, or a man of the Mussulman religion, is prohibited from marrying an idolatress, or a fire worshiper, though he may marry a Christian, or a Jewess (40); and a Mooslimah, or a woman of the Mussulman religion, cannot lawfully be married to anyone who is not of her own faith (42).  A difference of Dar, or nationality, may also be classed among the prohibitions of marriage; for if one of a married pair should happen to change his or her nationality, the marriage between them would be at an end (183).  For this and other purpose generally, nations or peoples are held to differ only as they are or are not the subjects of Mussulman state. Among these who are not the subject of Mussulman state, differences of allegiance is recognized as a further difference of countries; but the effect of this distinction is confined to questions of inheritance (708).  Moreover, though a Mussulman is allowed to have as many as four wives, he can not lawfully have two women at the same time who are so related to each other by consanguinity or affinity that, if one of them were a male, marriage between them would be prohibited (31). This objection does not apply to his having the women in succession (32); for, a Mussulman is not prohibited from marrying a sister of his deceased or divorced wife.  Though fosterage is treated of in a separated book for the sake of convenience, the religion has no effect on the condition of the parties between whom it subsists, except that it prevents them from intermarrying. 

The principal incidents of marriage are the wife's rights to dower and maintenance, the husband's rights to conjugal intercourse and matrimonial restraint, the legitimacy of children conceived (396), not merely born, during the subsistence of the contract, and the mutual rights of the parties to share in the property of each other at death.  The last incident belongs exclusively to valid marriages (694).  The right to dower is opposed to that of conjugal intercourse, and the right to maintenance opposed to that of conjugal intercourse, and the right to maintenance opposed to that of conjugal intercourse, and the right to maintenance opposed to that of matrimonial restraint. Hence, a woman is not obliged to surrender her person until she has received payment of so much of her dower as is immediately exigible by the terms of the contract (124), and is not entitled to maintenance except while she submits herself to personal restraint (442).  Dower, though not the consideration of the contract, is yet due without any special agreement, such dower being termed ‘dower of the like,’ or ‘the proper dower’ (91).  But when any dower has been specified by the contract, it supersedes the proper dower (93), which in that case comes into operation only on the failure on the specified dower.  When dower is expressly mentioned in the contract, it is usual to divide it into two parts, which are termed mooujjul, or prompt, and moowujjul, or deferred; the prompt being immediately exigible, while the deferred is not payable till the dissolution of the marriage (92). 

Marriage, like other contracts, is constituted by eejab o kubool, or declaration and acceptance (4). But some conditions are required for its legality; and an illegal, or invalid marriage, though after consummation similar in some of its effect to one that is valid (157), does not confer any inheritable rights on either of the parties to the property of each other (694).  This seems to be true, not only of contracts that are invalid ab initio, but of such also as are rendered so by subsequent acts of either of the parties, as, for instance, by the wife’s carnal intercourse, even against her will, with the son of her husband (281), which would render future intercourse with himself unlawful, and so invalidates the marriage.  When a contract is merely invalid the legitimacy of children conceived during its subsistence is not affected (157).  But when the parties are so nearly related to each other by consanguinity, affinity, or fosterage, that sexual intercourse between them is universally allowed to be unlawful, the contract is altogether futile, or void as to all its effects, according to Aboo Yoosuf and Moohummud, and in their opinion the paternity of the offspring is not established from the husband, or in other words, the children conceived during its subsistence are illegitimate (150).  This distinction was denied by Aboo Huneefa, who was of opinion that in all contracts there is such a semblance of legality as saves the marriage from being utterly futile.  According to him, therefore, whenever there is subsisting contract of marriage, the children conceived under it must always be held to be the offspring of the husband (154), unless expressly repudiated by him in the solemn from known as lian, or imprecation.  There is some reason for giving preference to the opinion of Aboo Huneefa, [Abu Hanifa] particularly in India, where it was adopted by the compilers of the Futawa Alumgeeree, who appear to have entirely ignored the distinction between invalid and void marriages (155). 

With regard to the dissolution of marriage during the lives of parties, this is termed firkut, or separation; and there are thirteen different kinds of it, or ways in which it may be effected.  Of these seven require the decree of a judge, six do not (205).  Separation for a change of nationality, or for apostasy from Islam, belong to the second class; and as soon as one of these occurrences takes place on the part of one of a married pair, the marriage between them is ipso facto at an end (182, 183). A change to Islam belongs to the first class; and when one of a married pair embraces the faith, and the other is within the jurisdiction of a Moohummudan judge, their marriage cannot be dissolved until Islam has been formally presented to, and rejected by the other (181).  Invalid marriages belongs to the second class; but though the intervention of the judge is not necessary to set them aside, it is his duty to separate the parties (156) when the legality of their connection is brought to his notice, and after consummation the marriage cannot be otherwise dissolved without a formal relinquishment by speech.  This may be by either of the parties in the presence of the other.  But there is some reason to doubt whether a relinquishment pronounced by one of the parties in the absence of the other, would be valid unless communicated to the other (156). 

 A furkut, or separation, which comes from the side of the wife without any cause for it on the part of the husband (53), or, more generally, every separation of a wife from her husband for a cause not originating in him, is a cancellation of the marriage; while every separation for a cause originating in the husband is termed a tulak, or divorce (203), Cancellations differ from divorce in so far that, if a cancellation takes place before the marriage has been consummated, the wife is not entitled to any part of the dower; whereas, though a divorce should take place before consummation, she is entitled to a half of the specified dower, or a present, if none has been specified (96). 

Separation for causes not originating in the husband are noticed incidentally as occasion for mentioning them has occurred.  Thus, separation under the option of puberty, or for inequality, or insufficiency of dower, which are separations for inequality, or insufficiently of dower, which are separations on the side of the wife, are noticed in the fourth and fifth chapters of this book, in connection with the subjects of guardians and separation on account of an original invalidity in the marriage, which is a cause in which both the husband and wife participate, mentioned in the eight chapter of the same book in connection with invalid marriages.  All being cancellations of the original contract, it will be found that in none of them has the wife any right to dower, unless the marriage has been consummated (53.67, 156). 

Separations for causes originating in the husband, or divorce in its different kinds, forms the subject of the third book.  Of these there is one kind of so much more frequent occurrence than the rest that the term tulak is sometimes restricted to it, and the first six chapters of the book are devoted to this kind alone.  This class comprises all separations which require the use of certain appropriate languages to effect them.  And to distinguish them from all other separations originating in the husband, I have given them the name of repudiation. 

Repudiation or tulak in this restricted sense, is either revocable or irrevocable.  A revocable repudiation may be revoked at any time until the expiration of the addut (287) or probationary term, usually about three months, prescribed by the law for ascertaining if a woman is pregnant; on the expiration of that term the repudiation becomes irrevocable, and divorce is complete (205).  A repudiation may, however, be made at once irrevocable by the force of the peculiar expressions employed, or by the force of the peculiar expressions employed, or by pronouncing it three times.  A triple repudiation is not only irrevocable, but has this further consequences, that it prevents the parties from re-marrying, until the women has been intermediately married to another husband, and the marriage has been actually consummated (292); a consequence which in some degree accounts for the strictness with which verbal repudiations are construed. 

The words by which repudiation may be given are either plain and express, or ambiguous.  The former take effect by the mere force if the expressions, but unless repeated, induce only a single repudiation.  The latter require intention on the part of the person employing them (212); which is generally determined by the state of mind in which they are uttered (229); and the repudiation effected by them is with a few exception irrevocable (231). 

Repudiation may not only be pronounced by the husband himself, but the power to repudiate may be committed to the wife, or to a third party.  The commission termed Tufweez, and is of three kinds, Ikhtiyar, Amr-bu-yud, and Musheeut (228). 
Repudiation may also be contingent, or, as it is termed by, Moohummudan layers, may be suspended on a condition (259).