The Concept of Wilaya in Hanafi Law: Authority versus Consent in al-Fatawa al-’Alamgiri

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The Concept of Wilaya in Hanafi Law: Authority versus Consent in al-Fatawa al-’Alamgiri

in Yearbook of Islamic and Middle Eastern Law Online


1 In Islamic law, walis are divided into three categones: nilayat al-nikab (guardtanslup ot marriage), wilayat al-badana (guardianship of person) and wilayat al-mal (guardianship of property). Kafa'ah refers to the principle of compatability/equality between husband and wife. 3 Mahr is commonly known as the dower, property or wealth which the groom legally owes the bride. For a detailed discussion of this issue, see M. Siddiqui, "tYlahr: legal obligation or rightful demand?" (1995) 6 Journal of Islamic Studies, pp. 14-24.

4 The original Latin for this quote and the following are from P. Birks and G. Mcleod, Justinian's Institutes, 1:20-24, "De auctoritate tutorem", London, 1987. 5 Henry S. Maine, Ancient Law, London, Dent, 1906, p. 158.

Cf. 2 above. The complexities surrounding this debate have been discussed in M. Siddiqui, "Law and the desire for social control: an insight into the Hanafi concept of Kafa'ah with reference to the Fatawa `Alam�iri", in M. Yamani (ed.), Feminism and Islam, Ithaca Press, 1996, pp. 49-68. See the review of this book in Yearbook of Islamic and Middle Eastern Law, vol. 4 (1997-1998), pp. 617-618.

7 ibn al-Humam, "`Abd al-Wahid" (1970) 3 Fath al-Qadir, 257. 8Sheikh Nizam Burhanpur, Al-Fatawa alalamgiri, 3rd edn., Beirut, 1973, p. 287. All references to al-Fatawa al`Alamgiri are from the third edition. A comprehensive analysis of the text is to be found in M. Siddiqui, "The Juristic Expression of the Rules of Marriage as Presented in the Fatawa al'Alamgiri", unpublished thesis, University of Manchester, 1992. The text is also known as the Fatawa Hindiyya. There were various scholars involved in the compilation of the book which took place between 1664-1672, but Sheikh Nizam Burhanpur was the chief jurist; thus references to the text in this article will have his name as the "author". 9 Nizam, al-Fatawa allilamgiri, p. 287. 10 Al-Marghinani, Abu al-Hasan, 'Ali b. Abi Bakr b. 'Abd 3l-]M,Al-Hidaya, SharhBidayatal- Mubtadi, vol. 1, Cairo, 1908, p. 196. " Ibn Nujaym, al-Bahr al-Ra'iq, Cairo, 1968, vol. 3, p. 117.

12 Nizam, al-Fatawa al'Alamgiri, p. 284. 13 Ibid., pp. 284-285. 14 J. Schacht, Introduction to Islamic Law, Clarendon Press, Oxford, 1964, p. 161. 15 Nizam, al-Fatawa al'Alamgiri, p. 284. The position of the qadi is of some significance and will be dealt with later on in this article. 16 Ibid., p. 284. 17 Ibid.

18 Interestingly, the apostate (murtadd) does not have any rights of guardianship over anyone else including a fellow murtadd. 19 Nizam, al-Fatawa alalamgiti, p. 284. 20 Ibid.

11 Nizam, al-Fatawa alAlamgiri, p. 285. 22 Ibid. 23 AI-Marghinani, al-Hidaya, vol. 1, p. 200.

24 Nizam, al-Fatawa al`Alamgiri, p. 285. Also, Quduri "al-Mukhtasar", in G. Bousquet and L. Bercher (eds.), Le StatutPersonnel en DroitMusulman Hanefite, Tunisia, Institut des hautes etudes de Tunis, 1950, p. 21. Fyzee explains the amendment to this law: "By the older law, a minor girl contracted in marriage by her father or grandfather could not exercise this option of puberty. This restriction has now been removed by statute", in A. A. A. Fyzee, Outlines of Muhamsnadan Law, 3rd edn., London, Oxford University Press, 1964, p. 91. zs Maine, Ancient Law, p. 147. zb Schacht, Introduction, pp. 148 and 165.

27 Nizam, al-Fatama al`Alamgiri, p. 286. z8 Ibid., pp. 285-286. z9 The present text suggests clearly that if intercourse takes place prior to a judicial separation, then the demand for separation is subsequent to the choice of the minor who has reached puberty. However, this is a point of ikhtilaf among various Hanafi texts, with arguments that this right drops after consummation. 30 Nizam, al-Fatawa al`Alamgisi, p. 286. 31 The term bikr also applies to those women who may have lost their virginity through any form of exercise or injury. Abu Hanifa extends this application to a woman who has lost her virginity through fornication as long as it is not made public; his two students, however, refute this.

32 Mahmood Tahir, Muslim Personal Law, Delhi, Vikas, 1977, p. 295. 33 Nizam, al-Fatawa al'Alamgiri, p. 286. 34 Charles Hamilton, The Hedaya, India, 1982, p. 99.

35 Nizam, al-Fatawa alAlamgiri, p. 286 36 Ibid. 37 Ibid. 38 Ibid.

39lbid.,p. 287. 40 Ibid., p. 289.

41Ibid.,p. 288.

42 Ibn Rushd, Bidaya al-Mujtahid, translated by Imran Nyazee, The Distinguished Jurist's Primer, vol. 2, Garnet Publishing, pp. 9-11. See the review of both volumes of The Distinguished Jurist§ Primer, in Part V of this volume of the Yearbook, pp. 560-563. 43 Ghada Karmi, "Women, Islam and Partriarchalism", in Feminism and Islam, note 6 above, p. 79.

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