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The applicants submitted that they were married in accordance with Islamic law on 14 August 1995 before two witnesses. The second applicant's father had acted as the second applicant's marriage guardian (wali nikah) and the dowry (mahar) had been 10 mayam worth of gold. At the time of the parties' marriage, the first applicant was a bachelor and the second applicant a virgin. The parties had never divorced nor had they left Islam (murtad). There were no other prohibitions to their marriage under Islam or current laws. The parties had two children. They had already registered their marriage with the Office of Religious Affairs and received a marriage certificate. The parties, however, also requested that the court ratify their marriage for residency purposes.

The court cited Kitab l'anatu al-Thalibin, juz IV, page 254, and Kitab Ushu al-Fiqh by Abdul Wahhab Khallaf, as examples of Islamic norms that allow the ratification of a marriage based on facts such as those established by the parties. The court then, pursuant to art 2(1) of Law No. 1 of 1974 on Marriage, and art 4 of the Compilation of Islamic Laws, ratified the parties marriage based on the evidence produced by the applicants.

The applicants submitted that they were married in accordance with Islamic law on 20 September 1981 by a marriage qadi (qadhi nikah) before two witnesses. The second applicant's father had acted as her marriage guardian (wali nikah) and the dowry (mahar) had been eight mayam worth of gold. At the time of the parties' marriage, the first applicant was a bachelor and the second applicant a virgin. The parties had never divorced nor had they left Islam (murtad). There were no other prohibitions to their marriage under Islam or current laws. The parties had two children. They had not yet registered their marriage with the Office of Religious Affairs and required a court determination in order to obtain a marriage deed (akta nikah).

The court cited Kitab l'anatu al-Thalibin, juz IV, page 254, and Kitab Ushu al-Fiqh by Abdul Wahhab Khallaf, as examples of Islamic norms that allow the ratification of a marriage based on facts such as those established by the parties. The court then, pursuant to art 2(1) of Law No. 1 of 1974 on Marriage, and art 4 of the Compilation of Islamic Laws, ratified the parties marriage based on the evidence produced by the applicants.

The applicants submitted that they were married in accordance with Islamic law on 20 December 2004 by a marriage qadi (qadhi nikah) before two witnesses. The second applicant's older brother had acted as her marriage guardian (wali nikah) and the dowry (mahar) had been eight mayam worth of gold. At the time of the parties' marriage, the first applicant was a bachelor and the second applicant a virgin. The parties had never divorced nor had they left Islam (murtad). There were no other prohibitions to their marriage under Islam or current laws. The parties had two children. They had registered their marriage with the local village (gampong) but not yet with the Office of Religious Affairs and required a court determination in order to obtain a marriage deed (akta nikah) and for other administrative purposes.

The court cited Kitab l'anatu al-Thalibin, juz IV, page 254, and Kitab Ushu al-Fiqh by Abdul Wahhab Khallaf, as examples of Islamic norms that allow the ratification of a marriage based on facts such as those established by the parties. The court then, pursuant to art 2(1) of Law No. 1 of 1974 on Marriage, and art 4 of the Compilation of Islamic Laws, ratified the parties marriage based on the evidence produced by the applicants.

The applicants submitted that they were married in accordance with Islamic law on 12 August 1983 by a marriage qadi (qadhi nikah) before two witnesses. The second applicant's father had acted as her marriage guardian (wali nikah) and the dowry (mahar) had been four mayam worth of gold. At the time of the parties' marriage, the first applicant was a bachelor and the second applicant a virgin. The parties had never divorced nor had they left Islam (murtad). There were no other prohibitions to their marriage under Islam or current laws. The parties had three children. They had registered their marriage with the local village (gampong) but not yet with the Office of Religious Affairs and required a court determination for marriage administration and other administrative purposes.

The court cited Kitab l'anatu al-Thalibin, juz IV, page 254, and Kitab Ushu al-Fiqh by Abdul Wahhab Khallaf, as examples of Islamic norms that allow the ratification of a marriage based on facts such as those established by the parties. The court then, pursuant to art 2(1) of Law No. 1 of 1974 on Marriage, and art 4 of the Compilation of Islamic Laws, ratified the parties marriage based on the evidence produced by the applicants.

The two applicants submitted that they were married by a qadi in accordance with Islam at the second applicant's parents' home in 1975 before two witnesses, and with the second applicant's older brother acting as the marriage guardian (wali nikah). The parties had seven children. Their marriage was never objected to by any third party and both parties had remained Muslims for the duration thereof. The parties' marriage certificate had been lost in the 26 December 2004 tsunami and, in order to have passports issued, they needed to produce a new marriage certificate. Accordingly, they requested that the court ratify their marriage.

In acceding to the applicants' request, the court acknowledged that the applicants had produced sufficient evidence, including witnesses, that established their submissions. The court cited fiqh from Kitab l'anatu al Thalibin, Juz II, page 308, which states that the admission of an adult male of sound mind to having married a woman, and vice versa, can be accepted. The court also cited art 7(2) and (3)(b) of the Compilation of Islamic Laws in acceding to the applicants' request.

Amendments to the Muslim Family Laws Ordinance 1961

In December 2021, the National Assembly in Pakistan introduced two amendments in sections 4 and 7 of the Muslim Family Laws Ordinance 1961. Both these amendments relate to Shia school (Fiqh-e-Jafaria). Under the first amendment a childless widow of a Shia husband is given inheritance right in immovable property. The second amendment clarifies the Shia law on talaq (divorce) by providing that the husband must pronounce Arabic words (seegha) in presence of two witnesses to make divorce effective. It further provides that the pronouncement of talaq (divorce) shall not be effective if it is done “jokingly or under anger, intoxication, insanity, duress or coercion of any kind”.

Both amendments provide that in case of dispute, the parties may have a recourse to “a court of competent jurisdiction or by approaching the Mujtahid-e-Alam from the panel maintained by the Council of Islamic Ideology.” Mujtahid-e-Alam is defined as “a juris-consult, religious scholar or doctor of Shia school of thought well versed with Shariah having international repute and of such recognition.” The decision of Mujtahid-e-Alam shall have a status of an award under the Arbitration Act 1940.

Contributed by Zubair Abbasi.

Biography of Mālikī jurist Yaḥyā b. Yaḥyā al-Laythī (152/769–234/848).

This source is part of the Online Companion to the print edition al-Muwaṭṭaʾ, the Royal Moroccan Edition: The Recension of Yaḥyā Ibn Yaḥyā al-Laythī (Harvard Series in Islamic Law), edited and translated by Mohammad Fadel and Connell Monette (PIL/HUP, 2019).

On December 26, 2008, Mariam Ayad ("Wife") and Ayad Hashim Latif ("Husband") got married.  They executed a prenuptial agreement ("Islamic Prenuptial Agreement") on the same day, which the wife alleges she considered to be a customary marriage certificate, not a contract conferring substantive rights and limitations on the Husband and the Wife, respectively.  The couple have a son.  Their marriage started deteriorating in 2020, at which point the Wife alleges she learned for the first time about the existence of the Islamic Prenuptial Agreement and the fact that she had executed it on the day of her marriage with her Husband.  On January 25, 2021, the Wife filed for divorce.  The Husband countersued for divorce and filed a motion to have the Islamic Prenuptial Agreement enforced, which provides that all divorce-related matters, including spousal support, child support, alimony, and marital property division, shall be resolved through the ruling of a fiqh panel to be convened.  The trial court, in rejecting the Wife's arguments regarding the invalidity and unenforceability of the Islamic Prenuptial Agreement, which the Wife had argued based on her assertion that she had thought she was signing a cultural document at the time of signing and that she was not given an opportunity to read and understand the terms, ruled in favor of the Husband and held that the prenuptial arrangement be enforced. 

The Wife appealed to the appellate court seeking relief from the order of referral to arbitration of the trial court.  In her submission to the appellate court, the Wife made four separate arguments:

1. The Islamic Prenuptial Agreement is void on grounds of contravening public policy, as the agreement clearly disavows Texas law and the laws of the United States, and replaces those with Islamic Law, which, according to the Wife's submission, "limits the rights of a woman to obtain a divorce," in violation of Equal Protection, the Establishment Clause, and Due Process, given the different weights assigned by Islamic law to official testimony from women compared to men.

2. The Islamic Prenuptial Agreement is void as a matter of Texas contract law because the agreement was involuntarily executed.

3. The trial court abused its discretion in finding that the Islamic Prenuptial Agreement stipulated to arbitration, as the agreement does not contain evidence of a meeting of the minds as regards an intent to arbitrate.  The agreement's mention of a "fiqh panel" or a "Muslim court" cannot unequivocally be read as an agreement to arbitrate.

4. Relatedly, the trial court also abused its discretion in referring the dispute to arbitration without allowing the Wife to present meaningful evidence refuting the existence of an alleged agreement to arbitrate.

The case is pending before the Texas appellate court.

This fatwa acknowledges the scourge of terrorism that has recently affected many countries, including Indonesia. It also acknowledges the perceptions held by some that terrorism reflects Islamic techings, that Muslims should be approached with caution, and that acts of terror constitute jihad.

The fatwa considers that terrorism, according to Islamic fiqh, constitutes piracy/unlawful warfare (hirabah). It determines that terrorism is a crime against humanity and civilisation that constitutes a serious threat towards state sovereignty and security, to world peace, as well as to societal welfare. It is transnational organised crime that can be categorised as an extraordinary and indiscriminate crime.

The fatwa distinguishes between terrorism and jihad, stating that terrorism is:

1. designed to cause damage (ifsad) and anarchy/chaos (faudha);
2. intended to create fear and destroy others; and
3. conducted without regulation and limits.

Meanwhile, it states that jihad:

1. brings about improvements (ishlah), albeit via warfare;
2. intends to enforce the religion of Allah and/or defend the rights of the oppressed; and
3. is conducted pursuant to regulations specified by shari'a with a clear enemy in mind.

Legally, the fatwa states that acts of terror are forbidden (haram), while acts of jihad are obligatory (wajib). Persons that commit suicide do so for personal reasons and are pessimists, while martyrs do so as a victim for their religion and the Muslim people, with the intent of obtaining the mercy and pleasure of Allah Subhanahu wa Ta'ala. Suicide bombing is, therefore, forbidden (haram), regardless of whether it is committed in a peaceful area or in a warzone. Martyrdom, however, is permitted.

In these excerpts from his manual on judicial practice, Khaṣṣāf provides an overview of the approach to be taken by the qāḍīto consultation. The qāḍīmay consult jurists present in the city in which he operates. If his opinion agrees with theirs, he can judge accordingly; otherwise he should determine which view he deems closest to the truth. If he disagrees with the jurists of that city, he may consult other jurists outside the city, identify the most appropriate view, and act accordingly. He may also take into account the view of a single jurisconsult when he himself does not have a particular opinion on the issue at hand. If the consulted jurist has greater knowledge of Islamic law (fiqh) than does the qāḍī, and the latter is judicious, he may consider both views and choose the most appropriate and correct as the basis of his judgment. Finally, the qāḍīshould abstain from issuing a verdict that in his opinion is faulty, even if some jurisconsult has endorsed it. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses these excerpts to provide a vivid picture of judicial practice and, in particular, of the dynamics of judicial consultations between the judge and jurisconsults in a court setting. Samour concludes that consultations and joint deliberations were perceived as yielding a higher degree of accuracy compared with solitary deliberations.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In these excerpts from his manual on judicial practice, Khaṣṣāf provides an overview of the approach to be taken by the qāḍīto consultation. The qāḍīmay consult jurists present in the city in which he operates. If his opinion agrees with theirs, he can judge accordingly; otherwise he should determine which view he deems closest to the truth. If he disagrees with the jurists of that city, he may consult other jurists outside the city, identify the most appropriate view, and act accordingly. He may also take into account the view of a single jurisconsult when he himself does not have a particular opinion on the issue at hand. If the consulted jurist has greater knowledge of Islamic law (fiqh) than does the qāḍī, and the latter is judicious, he may consider both views and choose the most appropriate and correct as the basis of his judgment. Finally, the qāḍīshould abstain from issuing a verdict that in his opinion is faulty, even if some jurisconsult has endorsed it. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses these excerpts to provide a vivid picture of judicial practice and, in particular, of the dynamics of judicial consultations between the judge and jurisconsults in a court setting. Samour concludes that consultations and joint deliberations were perceived as yielding a higher degree of accuracy compared with solitary deliberations.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In these excerpts from his manual on judicial practice, Khaṣṣāf provides an overview of the approach to be taken by the qāḍīto consultation. The qāḍīmay consult jurists present in the city in which he operates. If his opinion agrees with theirs, he can judge accordingly; otherwise he should determine which view he deems closest to the truth. If he disagrees with the jurists of that city, he may consult other jurists outside the city, identify the most appropriate view, and act accordingly. He may also take into account the view of a single jurisconsult when he himself does not have a particular opinion on the issue at hand. If the consulted jurist has greater knowledge of Islamic law (fiqh) than does the qāḍī, and the latter is judicious, he may consider both views and choose the most appropriate and correct as the basis of his judgment. Finally, the qāḍīshould abstain from issuing a verdict that in his opinion is faulty, even if some jurisconsult has endorsed it. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses these excerpts to provide a vivid picture of judicial practice and, in particular, of the dynamics of judicial consultations between the judge and jurisconsults in a court setting. Samour concludes that consultations and joint deliberations were perceived as yielding a higher degree of accuracy compared with solitary deliberations.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale (ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

In these excerpts from his manual on judicial practice, Khaṣṣāf provides an overview of the approach to be taken by the qāḍīto consultation. The qāḍīmay consult jurists present in the city in which he operates. If his opinion agrees with theirs, he can judge accordingly; otherwise he should determine which view he deems closest to the truth. If he disagrees with the jurists of that city, he may consult other jurists outside the city, identify the most appropriate view, and act accordingly. He may also take into account the view of a single jurisconsult when he himself does not have a particular opinion on the issue at hand. If the consulted jurist has greater knowledge of Islamic law (fiqh) than does the qāḍī, and the latter is judicious, he may consider both views and choose the most appropriate and correct as the basis of his judgment. Finally, the qāḍīshould abstain from issuing a verdict that in his opinion is faulty, even if some jurisconsult has endorsed it. In her chapter in Justice and Leadership in Early Islamic Courts, Nahed Samour uses these excerpts to provide a vivid picture of judicial practice and, in particular, of the dynamics of judicial consultations between the judge and jurisconsults in a court setting. Samour concludes that consultations and joint deliberations were perceived as yielding a higher degree of accuracy compared with solitary deliberations.

This source is part of the Online Companion to the book Justice and Leadership in Early Islamic Courts, ed. Intisar A. Rabb and Abigail Krasner Balbale(ILSP/HUP 2017)—a collection of primary sources and other material used in and related to the book.

Ibn Ḥārith al-Khushanī recorded the following case as a ḥikāya, an anonymous report: A Christian appeared before the judge Aslam b. ʿAbd al-ʿAzīz, petitioning to be executed. The anecdote offers insight into the historical role of judges during a period of religious dissent in the Umayyad Caliphate, while the author's narrative voice demonstrates past judicial approaches to rationality, humor, and violent penalization. 

This text is part of Maribel Fierro, The Judges of al-Andalus, forthcoming.

Fatwā concerning the legality, based on their interpretation of Islamic law, of a) the responsibility of mosque officials to prevent unwell congregants from entering a mosque’s premises and b) the temporary suspension of congregational and Friday prayers, and subsequent mosque closures. The answer provided by the Fatwa Committee, who met on 18 February 2020, is that a) mosques’ management has the religious duty to request or prohibit any unwell congregants from entering the mosque area, whether for performing prayers or other matters and the closing of a mosque and b) the suspension of congregational prayers and Friday prayers during this situation, is required.

This document is a beyānnāme, or declaration, sent by the Ottoman reʾīsül-kuttāb (chief scribe) to Britain's ambassador to the Ottoman Empire, justifying the Ottoman declaration of war on Russia by explaining Russia's violation of treaty obligations. The document gives insight into eighteenth-century Ottoman attitudes to international law and its relationship with Islamic law. Its use of the phrase naḳż-ı ʿahd (breaking the treaty), which has its origins in a specifically Qurʾānic context illustrates one way in which war was legitimized within the Ottoman Empire. Other phrases used in the beyānnāme demonstrate how Ottoman legal plurality functioned within a martial context. 

A Toledan man named Ibn Ḥātim was accused of being a heretic by sixty witnesses on the initiative of a fellow Toledan called Ibn Labīd al-Murābiṭ. The judge consulted with the local jurists, and following their legal opinions, he sentenced the accused to death. However, he granted the accused the right to challenge the witnesses (iʿdhār). Ibn Ḥātim escaped from Toledo and found refuge in the neighboring kingdom of Badajoz. Ibn Labīd went after him, carrying a copy of the judge’s sentence (tasjīl) along with the legal opinions of a number of non-Toledan jurists. In Badajoz, the ruler withdrew his support from Ibn Ḥātim, who fled again, this time to Cordoba. While in Cordoba, the “moral” police arrested Ibn Ḥātim, and the judge imprisoned him, giving him two months to prove his innocence. Unable to do so, Ibn Ḥātim was crucified alive. A number of legal issues arise in the course of this case: should the process of iʽdhār—the right to challenge witnesses—be granted to those accused of heresy (zandaqa)? Should refuge be granted to them? What happens with the estate or inheritance of an executed zindīq? Can a judge reverse a sentence given by another judge? The source is a collection of court cases by Andalusi scholar Ibn Sahl (d. 486/1093), and it is based on information directly available to the compiler, who was also a witness of most of the events described.