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obligations while in absentia, they disagree with regard to some important aspects
of his absence, such as the length of the period that must be observed before he
is declared dead, and the rights of his wife to obtain a divorce from him and
subsequently to remarry. The manner in which Islamic jurists discussed the legal
status of a missing man and his abandoned wife is significant for a discussion of the
construction and perpetuation of gender roles in certain areas of Islamic law.38
The category of “missing man” is in itself gendered, because Islamic legal
discourse did not foresee the possibility that a married Muslim woman could be
missing from her domicile for an extended period of time without the knowledge
and permission of her husband. Furthermore, if a married Muslim woman were
to be absent from the conjugal house without her husband’s consent, she could be
declared a transgressor [ nāshidha] and consequently may lose her right to alimony
or even worse, provide her husband with grounds for divorce.39 It appears, therefore,
that not only presences in the marital union are gendered, but absences as well.
Yet, considerations of the category of missing man in the works of Islamic
jurisprudence always include a discussion of the rights and obligations of his wife
who, in this particular context, is referred to as “the wife of the missing man” [ zawjat
al-mafqūd]. While the inclusion of the missing man’s wife into a discussion of
her husband’s rights and obligations during his absence is understandable, in view
of her assumed financial dependence on him, the manner in which Islamic legal
scholars defined her legal position vis-à-vis her absent husband is illustrative of the
strategies which these jurists applied in order to safeguard the social order based on
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male dominance in the marital union. While the jurists made significant efforts to
protect the rights of the missing man in his roles of husband and property-owner,
they left his wife in the unenviable legal position of a person who is de jure married,
but de facto deprived of the partner with whom she signed the marriage contract
binding both to performing specific duties that depended on their strictly-divided
gender roles. However, even if one acknowledges that the laws of marriage are
gendered because they institutionalize the gender asymmetry that stems from the
premise that a wife belongs—as would any other property—to her husband, this
treatment of the wife of a missing man is highly problematical. The basic purpose
of marriage, as Judith Tucker notes, is the achievement of social harmony and the
sexual satisfaction of both partners. This purpose can only be achieved if both
partners are present in the conjugal house, i.e. if they live together.40 Thus, even if the
law anticipated different rights for the partners in a marital union, it also stipulated
certain obligations for both of them, as unequal as they may have been. The absence
of one partner from the conjugal house hence undermines the institution of marriage
and seriously calls into question its main purpose. The conscious decision of the
Hanafi jurists to downplay the fact that a missing husband is de jure in breach of
the marriage contract which bound him, among other things, to cohabitating with
his wife, to be her sexual partner, and to act as the head of the household, had
detrimental consequences for his wife who de facto remained in the conjugal house
and was not in violation of the provisions in the marriage contract.41
In his collection of fatwa s, al-Mostari included several opinions that specifically
dealt with the problem of the missing man and his (abandoned) wife. Like other
fatwa texts in his collection, those included in the “Chapter on the Missing Man”
contain bits and pieces of authoritative texts which al-Mostari read while examining
the questions at hand, as well as short explanations of the rationale behind his
rulings on these issues. As with other questions that had been brought to his
attention, al-Mostari’s examination of the problems concerning the missing man
entailed a typical procedure: summarizing the case into a legally acceptable form
of question, examining the body of authoritative Hanafi texts, interpreting the case
in the light of circumstances, and providing the petitioner with a clear answer. So
who, according to al-Mostari, fell under the category of “missing man”?
In his definition of “missing man,” al-Mostari relied on one of the most influential
and authoritative Hanafi texts, al-Hidāya by al-Marghīnānī (d. 1197),42 who wrote:
“When a man is absent and his whereabouts are not known, and when it is not known
whether he is dead or alive, a judge appoints someone to guard his property.”43
The indeterminacy of the status of a missing man thus led to the placement of his
property under the supervision of a legal guardian. While al-Marghīnānī did not
specify details regarding the guardian of the missing man’s property, al-Mostari
claimed that in general this role was to be entrusted to the “head of the treasury”
[ amīn bayt al-māl], i.e. a state official, and not to a relative of the missing man.44
The necessary involvement of two state officials—the judge [ al-ākim] and the
state official whom he appoints to guard the missing man’s property—is a telling
example of the precautionary measures which jurists undertook in order to protect
Zečević, Missing Husbands, Waiting Wives
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the property of the missing man. Relying on one of the most prominent Ottoman
authoritative legal texts, Durar al-ukkam fī shar ghurar al-akām by Muammad
b. Faramūrz b. ‘Alī Mullā Khusraw (d. 1480),45 al-Mostari agreed that state officials
needed to be involved in the affairs of a missing man “because the judge appoints
someone to look after all those who are incapable of looking after themselves,
and a missing man falls within that category and thus becomes like a young boy
or a madman whose property need supervision.”46 In order to justify the state’s
supervision of the missing man’s property, the jurists thus seemingly altered his
legal status, so that—according to al-Mostari’s fatwa—he was degraded to the same
legal status as a “young boy” or “madman.” Importantly, all schools of Islamic
law consider a young boy and a madman to be outside of Islamic legal discourse
on account of their lack respectively of sexual and intellectual maturity. In other
words, they are unanimously considered to be legally incompetent, and therefore
interdicted [ majhūr]. However, an overview of Hanafi authoritative texts that deal
with interdicted persons47 shows that the comparison of the status of a missing man
to that of a young boy or madman was solely used in support of the argument that
he was incapable of protecting his property while in absentia, and not to indicate
his inability to act in any other capacity. Thus, while his property was placed into
the care of state officials, the missing man’s legal status did not suffer real changes.
In particular, his absence from the conjugal house where, in his capacity as a man,
he was supposed to act as the head of his household
and the partner to his wife was
not taken as cue for any alteration of his legal status.
The presence of numerous property-related questions in al-Mostari’s collection
of fatwa s indicates the deep interest of the relatives of missing men in the status
of their estates. For example, one fatwa reads as follows:
Query: Zayd was absent with some interruptions, and he was neither de facto
nor de jure dead. Can his estate be sold to someone and divided among his
other relatives?
Answer: No.
Explanation: His property is not to be divided before his condition is known
because he may reappear alive. The division (of his property) takes place
only after his death is established.
Authoritative Source: Muammad b. Faramūrz b. ‘Alī Mullā Khusraw,
Durar al-ukkam fī shar ghurar al-akām, “Book of the Missing Man”
( Kitāb al-mafqūd).48
The position of al-Mostari on this issue is in accordance with the majority of the
most relevant Hanafi sources regarding the property of a missing man: it must be
safeguarded until the circumstances of his whereabouts become clear, that is, until
clear evidence is presented that he is no longer alive. However, the sources which
he had consulted in order to answer the question of how long the missing man’s
property had to be held in abeyance until he was pronounced dead differ on this
issue. For example, al-Marghīnānī, whose authoritative al-Hidāya is frequently
quoted by al-Mostari, claimed that Hanafi jurists determined different time intervals
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before a missing man could be pronounced dead. While he himself opted for the
rule that only after 120 years had lapsed from a missing man’s date of birth could
he be pronounced dead, al-Marghīnānī indicated that some scholars within the
Hanafi school held that the waiting period should be 100 or 90 years.49 al-Mostari
elaborated upon his own opinion on the vexing issue of the length of time after
which a man should be considered dead in the following fatwa:
Query: After ninety years have passed from the birth of Zayd who has been
continuously in absentia, can the judge make a ruling regarding his death
and then divide his property among his heirs?
Answer: Yes.
Authoritative source: Mu‘īn al-Quāt, “Book of the Missing Man” ( Kitāb
al-Mafqūd).50
As seen above, al-Mostari chose the least popular opinion within the Hanafi
madhhab, according to which the “missing man” was to be pronounced dead after
90 years had passed from the day of his birth. The pronouncement of a missing
man’s death had important consequences for the division of his property among
his heirs. In addition, it implied a change in the marital state of his wife, who
thereafter assumed the status of widow and consequently became available for
another marriage.
al-Mostari says: “When the ruling regarding his death is made, his wife starts
the waiting period which is prescribed for widows. The waiting period becomes
effective on the day of the pronouncement of his death.”51 According to this ruling,
which al-Mostari derived from al-Marghīnānī’s al-Hidāya, it seems that the only
option available to the wife of a missing man for getting out of a marriage in which
she was de facto the only partner was to wait until 90 years had passed from his
birthday. How did the jurists justify this position? Did the status of the wife of the
missing man change at all with the prolonged absence of her husband?
Married, Without Husbands
The Hanafi rulings on the legal status of the wife of a missing man, and on her
rights to the portion of her husband’s property that he was legally obliged to provide
for her support, do not indicate any changes in her condition while her husband
is absent. As with any other married Muslim woman, she was entitled to alimony,
which, in her case, was to be taken from the property that had been entrusted to
a legal guardian.52 While it seems that Hanafi jurists treated the wife of a missing
husband fairly, insofar as they unanimously declared that a part of the missing
man’s property should be given as the alimony to which she was entitled, they
failed to provide clear answers regarding those abandoned wives whose husbands
left behind no property. What were their options to get out of such a marriage?
Could they have demanded a divorce based on the fact that their husbands had no
property to be given for alimony?
The following questions were presented to al-Mostari, regarding the rights of
the wife of a missing man:
Zečević, Missing Husbands, Waiting Wives
345
Query: Can Hind, whose husband is de facto and de jure still alive, marry
herself to another man?
Answer: No.
Explanation: There is a prophetic tradition which says: “She is his wife until
the explanation concerning his circumstances reaches her.”
Authoritative source: Muammad b. Faramūrz b. ‘Alī Mullā Khusraw, Durar
al-ukkam fī shar ghurar al-akām, “Book of the Missing Man” ( Kitāb
al-mafqūd).53
While it may seem that Mullā Khusraw’s opinion, which al-Mostari quoted in this
fatwa, places an exceptional burden on the wife of a missing man—as it leaves
her in the untenable position of probably prolonged waiting—it is actually in
consonance with the opinions expressed in the most authoritative texts of the Hanafi
madhhab. For example, one of the most prominent Hanafi scholars, al-Sarakhsī
(d. 1090), whom al-Mostari frequently quoted in his collection, made the following
statement in his celebrated work Kitab al-Mabsu: “According to our school, she
does not remarry. This opinion is derived from the tradition that goes back to the
Prophet’s son-in-law ‘Alī ibn Abī ālib, who said: “She is tempted, so let her be
patient until [his] death or divorce is evident.”54 Unfortunately, al-Sarakhsī did not
provide any details regarding the context or the circumstances under which ‘Alī
ibn Abī ālib had supposedly made this statement. Consequently, it is difficult to
determine how and why a missing man’s wife was considered to be “tempted”
and thus required to “be patient” and wait for the clarification of her husband’s
condition. Another equally reputable Hanafi scholar, al- Marghīnānī, summed up
the prevailing opinion of the Hanafi madhhab, claiming that its leading scholars
had relied on two traditions, one attributed to the Prophet Muammad and the other
to his son-in-law, both of whom had suggested that “the [marriage] bond between
him [the missing man] and his wife is not to be broken.”55
The other three main Sunni schools of Islamic law did not share this opinion.
For example, the eponym of the Malikite school of Islamic law, Mālik b. Anas
(d. 795) stated that a woman whose husband was missing had to wait for four years
for news of his condition. After that period, a judge could pronounce her husband
dead and she could start the obligatory waiting period [ ‘idda] of four months and
ten days. Subsequently, she could marry whomever she wanted.56 While making
his ru
ling on this issue, Mālik b. Anas relied on a adīth attributed to the prophet’s
companion and the second caliph, ‘Umar b. Khaāb (d. 644), who had determined
that a missing man’s wife may start the observation of the obligatory waiting period
after four years had elapsed from the first day of her husband’s absence.57
The proponents of the madhhab s named after imam Muammad b. Idrīs
al-Shāfi‘ī (d. 820) (the Shafi‘ites) and imam Amad b. anbal (d. 855) (the
Hanbalites) followed the opinion of their respective eponyms who determined,
also on the authority of ‘Umar b. Khaāb, that the wife of a missing man should
remain married to him for a period of four years from the beginning of his absence.
Following that period, both madhhab s agreed, she could start the four-month and
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ten-day waiting period of a widow, after which she would become available for
another marriage.58
The difference in opinion between the Hanafi scholars on the one hand, and
the proponents of the three other major Sunni schools of law on the other, comes
down to differences in the selection of the textual indicator [ dalīl] used as the main
argument for their respective rulings. At first glance, it seems that the Hanafites had
a more valid argument, because their ruling was based on a prophetic tradition, while
all the others relied on a tradition that was supposedly derived from a statement
by the prophet’s companion ‘Umar b. Khaāb. If the prophetic tradition which the
Hanafi madhhab used as their main textual indicator—”she is his wife until the
explanation concerning his circumstances reaches her”—is authentic, then why
was it not used by the leading scholars of the other three madhhab s who, instead,
opted for the opinion of ‘Umar b. Khaāb?
The conspicuous absence of this alleged prophetic saying in the main Sunni
adīth collections and the canonical works of the eponyms of other three Sunni
schools of Islamic law suggests that in all probability it had been invented. A
strong argument in support of this thesis can be found in the work of one of the
most prominent adīth experts among the Hanafi jurists, ‘Abd Allāh b. Yūsuf
Zayla‘ī (d. 1360–61), Nab al-rāya takhrīj aādīth al-Hidāya, in the “Chapter on