1 In Islamic law, walis are divided into three categones: nilayatal-nikab (guardtanslup ot marriage), wilayatal-badana (guardianship of person) and wilayatal-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 Journalof IslamicStudies, pp. 14-24.
4 The original Latin for this quote and the following are from P. Birks and G. Mcleod, Justinian'sInstitutes, 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.), FeminismandIslam, Ithaca Press, 1996, pp. 49-68. See the review of this book in Yearbookof Islamicand MiddleEasternLaw, vol. 4 (1997-1998), pp. 617-618.
7 ibn al-Humam, "`Abd al-Wahid" (1970) 3 Fathal-Qadir,257. 8Sheikh Nizam Burhanpur, Al-Fatawaalalamgiri, 3rd edn., Beirut, 1973, p. 287. All references to al-Fatawaal`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to be found in M. Siddiqui, "The Juristic Expression of the Rules of Marriage as Presented in the Fatawa al'Alamgiri", unpublished thesis, University of Manchester, 1992.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 FatawaHindiyya. 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-Fatawaallilamgiri, 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-Fatawaal'Alamgiri, p. 284. 13 Ibid., pp. 284-285. 14 J. Schacht, IntroductiontoIslamicLaw, Clarendon Press, Oxford, 1964, p. 161. 15 Nizam, al-Fatawaal'Alamgiri, p. 284. The position of the qadi is of some significance and will be dealt with later on in this article. 16Ibid., 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-Fatawaalalamgiti, p. 284. 20Ibid.
11 Nizam, al-FatawaalAlamgiri, p. 285. 22 Ibid. 23 AI-Marghinani, al-Hidaya, vol. 1, p. 200.
24 Nizam, al-Fatawaal`Alamgiri, p. 285. Also, Quduri "al-Mukhtasar", in G. Bousquet and L. Bercher (eds.), LeStatutPersonnelenDroitMusulmanHanefite, 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, OutlinesofMuhamsnadanLaw, 3rd edn., London, Oxford University Press, 1964, p. 91. zs Maine, AncientLaw, p. 147. zb Schacht, Introduction, pp. 148 and 165.
27 Nizam, al-Fatamaal`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-Fatawaal`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-Fatawaal'Alamgiri, p. 286. 34 Charles Hamilton, TheHedaya, India, 1982, p. 99.
35 Nizam, al-FatawaalAlamgiri, p. 286 36Ibid.37Ibid.38Ibid.
39lbid.,p. 287. 40Ibid., p. 289.
42 Ibn Rushd, Bidayaal-Mujtahid, translated by Imran Nyazee, TheDistinguished Jurist'sPrimer, vol. 2, Garnet Publishing, pp. 9-11. See the review of both volumes of TheDistinguished Jurist§Primer, in Part V of this volume of the Yearbook, pp. 560-563. 43 Ghada Karmi, "Women, Islam and Partriarchalism", in FeminismandIslam, note 6 above, p. 79.