Petition from a captive wife (1853)

islamiclawblog

April 25

Mahibädär 'Abdurrakhman qizi sent a petition to the Orenburg Muslim Spiritual Assembly (hereafter the OA) on December 12, 1852. The OA received the report on the 20th of December. Mahibädär wrote that she had married Jomagul Yolaman from the same village in 1846 with a 800 rubles mahr, 400 rubles prompt (mu'ajjal) and 400 rubles deferred (mu'ajjal). The groom paid 100 rubles at the time of nikāḥ. The parties agreed that Jomagul would pay 300 rubles more and complete the prompt (mu'ajjal) part of the mahr and then he could take Mahibädär to his home as his wife. Mahibädär stated that Yolaman promised to give the remaining 300 rubles whenever she asked for it.

Although Jomagul did not pay the 300 rubles of the remaining mahr mu'ajjal and therefore could not take Mahibädär to his home, the marriage was consummated. After a while Jomagul invited Mahibädär as a guest to his home but kept her and this "visit" lasted several years. Mahibädär started to ask about the remaining portion of her mahr, and Jomagul told her that he was not capable to pay. Allegedly, he started to abuse her verbally and physically; accused her of adultery, and at one time he beat her until she lost consciousness. As she came to her senses, she sought refuge with her mother-in-law, and Jomagul beat even his own mother.

Mahibädär later went to her relatives. Her husband contacted the city police (gorodnichii) of Esterlitamak town to ask for his wife. The police summoned both and listened to their claims and sent them to an akhund in the company of Cossack soldiers, so that the akhund could find a way of settlement according to shari'a. However, the akhund was not present in his home. The Cossacks took them to the muazzin of the same mosque, Ibrahim Selim ughli. Mahibädär claimed that the muazzin did not listen to her claims, did not employ sharī'a but with the help of the Cossacks forcefully gave her to her husband. Jomagul continued to humiliate and abuse her after he took her with him.

In her petition, Mahibädär was asking from the OA a just investigation of her case. She was also asking to be freed from her husband and permitted to go to her relatives. Since she was concerned that the muazzin did not apply rules of Islamic law to the resolution of her case, she gave a name of an akhund whom she thought would be fairer in his judgement. The OA appointed akhund 'Abdelqawi Yaushev whom Mahibädär requested for the investigation of her case.

'Aridha – The petition of Mahibädär 'Abdurrahman qizi to the Orenburg Assembly /Muftī 'Abdulwahid Suleyman from December 20, 1852.

On September 1, 1853, the OA received the report of akhund 'Abdelqawi Yaushev. Akhund Yaushev prepared the report for the land court (zemskii sud). The OA had appointed the akhund to investigate the case in February 1853. The akhund traveled to the Bayik village of Esterlitamak uyezd, however, the Bashkurt Jomagul Yolaman and his wife Mahibädär 'Abdurrakhman did not accept the invitation of the akhund to present their cases. Therefore, the akhund wrote to the OA asking for the summoning of this married couple for the hearing and resolution of their case through the local Russian administrative authorities. Since their appearance before the akhund would not be sufficient to hear and resolve the case, and since they had already ignored the akhund's invitation, the akhund requested further from the OA that the administrative/law enforcement authorities should assure that the couple would stay with the akhund until he arrived at a decision.

The akhund's request was fulfilled on May 24, 1854. The couple brought their case to the akhund in the presence of the village chief, Biktimer 'Abdulwahid. The woman declared that her husband Jomagul Yolaman gave her conditional repudiation (ta'līqname[2]), therefore, she withdrew her complaint.

Mahibädär gave a written declaration of the cessation of her accusations and legal demands to the akhund. She declared that her husband who previously refused to pay her mahr agreed to pay the remaining 200 rubles of her prompt mahr within a certain period, that her husband promised not to abuse her physically or verbally after he took her as wife, that he would not leave her without maintenance and accommodation. Mahibädär avowed that her husband would give her divorce – ṭalāq bāʾin – if he could not fulfil his promises – ta'līqname. However, when the akhund wanted to get a confirmation from her husband, he denied that he agreed to a conditional promise to pay the remaining mahr.

The case was thus left open. In December 1854, the OA appointed another akhund to seek a solution for this case. On January 25, 1855, akhund Khosneddin Ajdanuf went to the Bayik village and summoned Mahibädär and her husband with the assistance of muazzin Ibrahim Salim ughli Aminif. Another court majlis was convened where mediators and arbiters, whom both sides agreed on were also present. This time, Mahibädär withdrew all her claims against her husband and her husband agreed to khul'. When the report was received at the OA, the qāḍī who reviewed the report noted on the margins of the report that the case should be registered as concluded through a peaceful settlement (ṣulḥ) between the parties.

Mahibädär had to forsake all her marital rights and her demands for the payment of the remaining mahr. Moreover, she would give her husband two horses, and several household items such as a leather coat, silk attire, etc. The husband signed the document that akhund Khosneddin prepared confirming that he received the items as appointed mahr and gave his wife Mahibadar an irrevocable divorce.

Mahibädär put her symbol (seal), tamga, to the document and affirmed that she accepted the divorce on the aforementioned terms. After the signatures of the couple, the arbiters from each side and the akhund signed that document. Mahibädär once again gave an official declaration of withdrawal reiterating that she withdrew her claims against her husband on January 31, 1855.

Commentary/Analysis

In the preceding case, I discussed the common practice wherein newly married women reside in their parental homes until they receive their mahr from their husbands. However, there were instances where men circumvented this established custom by inviting their wives to stay as guests (kunakka) at their homes, thereby preventing them from returning to their parents' houses. In the case of Mahibädär 'Abdurrakhman qizi, she married with a mahr totaling 800 rubles, split into 400 rubles prompt and 400 rubles deferred portions. Only 100 rubles were paid at the time of marriage, leaving 300 rubles outstanding from the prompt mahr (mahr mu'ajjal). Despite promising to fulfill this payment, her husband failed to do so, and Mahibädär stayed at her parent's house. Mahibädär's grievances include not only the non-payment of the outstanding mahr but also physical and verbal abuse by her husband.

Ta'līqname (ta'alluq)

Akhund Yaushev conducted the investigation of Mahibädär's case. Mahibädär 'Abdurrakhman qizi presented a formal request for a ta'alluq, a conditional repudiation, from her husband that he would grant divorce in case he fails to fulfill his financial obligation and continues abusive behavior. In this document, she stipulated that he must settle the remaining 300 rubles of mahr, cease his abusive behavior, and provide for her adequately. In return, she would withdraw her legal claim. The utilization of ta'alluq was a common recourse in such circumstances, with requests originating from parents, women themselves, or religious authorities acting on their behalf. Numerous cases unfolded similarly, with marriages officiated but husbands failing to fulfill their mahr obligations. In many instances, resolution came in the form of ta'alluq agreements and irrevocable divorces (bā'in ṭalāq). These conditional stipulations often included specific details. For instance, in one other case from the Orenburg archive a mother, frustrated by her daughter's husband's failure to pay the mahr and subsequent moving of her daughter to his home, imposed a condition requiring him to sign a ta'līqname, stating that if he did not settle the outstanding mahr by a certain date, his wife would have the right to declare herself divorced (bā'in ṭalāq). Similarly, in another case the OA imposed a condition whereby the husband must settle the recorded 150 rubles of mahr and desist from abusive behavior; failure to comply would grant the wife the right to issue a bā'in ṭalāq.

Divorce – ṭalāq bā'in/khul'

When akhund Yaushev investigated this case and interrogated the parties, he reported that Yulaman ughli said that he did not agree to conditional divorce and refused to provide a written promise. Akhund Yaushev sent the case to the OA and the OA appointed another akhund to re-investigate the case. Mahibädär repeated her complaints to the newly appointed akhund. She said that she went to her stepfather, but the muazzin gave her back to her husband and insulted her and did not give her mahr. The case ended with divorce only after Mahibädär agreed to give Yulaman ughli some of her property – a khul', by which she forfeited a part of her property, because otherwise he refused to give her conditional repudiation (ta'alluq) or divorce her through ṭalāq.

Religious authority and difficulties of enforcement

Akhund Yaushev, tasked with investigating and resolving this case, encountered significant challenges in summoning both the plaintiff and the defendant. In his report to the OA, he noted the couple's failure to heed his call to present their case. It is likely that Yulaman ughli prevented his wife, Mahibädär , from attending the court majlis. It is noteworthy that Mahibädär herself had requested Akhund Yaushev's appointment, making it improbable for her to disregard his summons. Consequently, the akhund had to resort to involving civil authorities and Cossacks to compel the couple to appear before him. He sought assistance from these authorities to ensure the couple's presence in court until he delivered his ruling.

Conclusions

The three cases that I analyzed in these essays elucidate on the life of Muslim family in the Volga-Ural region of the Russian Empire in the middle of the nineteenth century. They all tell us different stories related to the issue of mahr and demonstrate how Muslims understood mahr in this context. All cases show an example of a dispute and a disagreement between two sides of a marital contract, which was brought for a consideration of a mahalla imam or a regional akhund and then petitioned to the OA. Two petitions are written by women, and one is written by a woman's father. My preliminary conclusions may be summarized as follows.

Mahr plays an important role in the definition of lawful marriage. According to Islamic law, mahr is an essential condition of a valid marriage. Russian imperial law dictated the legality of Muslim marriage through the performance of ʿaqd nikāḥ between a couple in their legal age of marriage (16 for brides and 18 for grooms, according to 1836 law), by a licensed imam and registration in civil registry books (metricheskie knigi). However, the Volga-Ural Muslim perspective prioritized the prompt payment of mahr before or at the time of marriage above other conditions and to be paid fully in the first couple of years after nikāḥ. This payment stood as a crucial criterion for validating a marriage, irrespective of whether ʿaqd nikāḥ was conducted.

In the cases studied, in the first one, the parties specified one amount of mahr (mahr al-musammā). In the second, only the amount of prompt mahr was determined; there was no mention of a deferred mahr. In the third case, the total amount of mahr and its two parts, prompt and deferred, were assigned. In the first half of the nineteenth century, the parties to the marriage contract often determined only one amount. The bride and her family expected this entire amount before or during the performance of marriage or within the first year after marriage took place. In some cases, the agreed amount of mahr is clearly called mahr al-musammā; in other cases, it is not entirely clear whether this amount means mahr al-musammā or only the first part of the mahr. In other cases, the mahr al-musammā was clearly marked, along with its two parts.

Despite the division of mahr according to Islamic law into prompt and deferred portions, this convention did not uniformly apply in the Volga-Ural region. The initial payment of mahr amounts were often significantly lower than half of the agreed-upon sum (mahr al-musammā). In some cases, women demanded the payment of the promised prompt part of the mahr. In other cases, women sought the full payment without division. However, complete payment was rarely realized in practice. There was an understanding within the community that initially only partial payment could be made, leaving the rest to be paid later, often upon the demand of the wife. In cases of the husband's death, women were aware of their entitlement to the unpaid mahr before the distribution of inheritance among heirs.

Mahr was not simply an amount of money, but it was a process of property transfer securing sexual access. ʿAqd nikāḥ typically occurred simultaneously with or after the transfer of the initial portion of mahr to the bride. As mahr constituted a debt, the remainder was eagerly anticipated after nikāḥ, often demanded by the wife. The timing of the initial mahr payment also corresponded with the consummation of marriage, with women and their parents regulating sexual access based on payment progress. Traditionally, married daughters refrained from moving to their husband's residence until a significant mahr sum was paid. Consequently, some women relocated to their husband's house with existing children, although husbands were often permitted to visit their wives at their parental home. Newlywed couples occasionally exploited loopholes by claiming the wife's invitation as a guest (kunakka) to the husband's home.

In instances where husbands faced difficulties in fulfilling mahr payments, the community and family intervened through the imposition of ta'alluq, an oral or written promise or conditional repudiation stipulating conditions for the husband to pay a specific sum of mahr within a designated timeframe. Ta'alluq was not exclusive to mahr but extended to various conditions, often accompanied by an irrevocable divorce or bā'in ṭalāq. This granted wives the freedom to initiate divorce if husbands failed to meet specific promises. Ta'alluq conditions could be designated by women, parents, or religious authorities.

While mahr is typically regarded as a form of financial protection post-divorce, it frequently became a catalyst for marital dissolution. The situation where daughters remained in their parental homes while persistently requesting mahr created tensions, often resulted in divorce. Indeed, the majority of mahr disputes examined concluded in divorce. Contrary to scholarly discussions centering on the deferred mahr payment in divorce scenarios, our analysis reveals that mahr disputes often precipitated divorce. Moreover, many cases concluded in khul' rather than ṭalāq, with women agreeing to forego the unpaid mahr and relinquish part of their estate to secure divorce through khul'.

Notes:

[1] National Archive of the Republic of Bashkortostan, Fond I-295, op. 3, d. 3388.

[2] The terms ta'līq/ta'līqname or ta'alluq are both used in the documents that I study here. Ta'līq refers to conditional repudiation, conditional pronunciation of ṭalāq. See Judith Tucker, Women, Family, and Gender in Islamic Law (Cambridge University Press, 2008), 230. Amira Sonbol uses the term ṭalāq mu'allaq (suspended or conditional divorce) which she defines as "a divorce based on a husband's taking an oath to do or not do a certain act on pain of his wife's divorce by ṭalāq should he breach the oath. This type of divorce comes into immediate effect if the oath is broken." Amira Sonbol, "A History of Marriage Contracts in Egypt," in The Islamic Marriage Contract: Case Studies in Islamic Family Law, eds., Asifa Quraishi and Frank E. Vogel (Cambridge, Massachusetts: Harvard University Press, 2008), 87-122, here at 97.