On October 15, 1853, akhund[2] ‘Izzatullah ‘Abdulaziz ughli[3] prepared a report to the Orenburg Muslim Spiritual Assembly[4] (hereafter the OA) after hearing the testimonies of all the involved parties and the witnesses in front of the arbiters (mediators) that both the plaintiff (muddaʿī) and the defendant agreed upon. Akhund ‘Abdulaziz ughli included an oath document signed by all the testimony givers.
The plaintiff, Fakhreddin Bakhtiyar ughli claimed that he promised to give his daughter, Kamaliya, in marriage to ‘Ali Salawat ughli with her consent. The parties agreed on 450 rubles as the amount of specified mahr (mahr al-musammā), an amount specified and agreed upon by the parties during the negotiation of marriage contract.[5] At the time of this arrangement, nikāḥ (marriage, marriage contract) was not performed between Kamaliya and ‘Ali. Fakhreddin Bakhtiyar ughli stated that he received items and money totaling 130 rubles and gave to the side of the groom some gifts totaling 60 rubles. According to Fakhreddin Bakhtiyar ughli, the groom and his brother demanded the items they had given at the time of the engagement, and they were not planning to pay the mahr in full. He stated that his daughter was ready to marry ‘Ali Salawat ughli. Fakhreddin Bakhtiyar ughli wrote in his petition that ‘Ali Salawat ughli did not marry his daughter and neither allowed her to marry another man. The father was urging the OA to convince ‘Ali Salawat ughli to conclude the agreement to marriage with a nikāḥ or give his daughter permission to marry another man.
The brother of ‘Ali Salawat ughli provided the response of the defendant. He admitted that as a guardian and a representative (walī wa-wakīl) of his brother he agreed to represent his brother in contracting his marriage to Kamaliya. He acknowledged the exchange of items and money between the two families and the amount of the agreed upon mahr. However, he denied that he or his brother demanded back the items that they had given towards the mahr. He stated that they agreed to perform nikāḥ and pay the specified mahr, however they could not set a date for the nikāḥ because they did not have the financial capability to pay the mahr. ‘Ali Salawat ughli repeated his brother’s response and added to his testimony that he did not consummate his marriage with Kamaliya.
At the same setting, in front of the same mediators, Kamaliya gave her testimony. She corroborated the fact that she gave her consent to marry ‘Ali Salawat ughli and her father agreed to this arrangement. The mahr al-musammā was agreed at 450 rubles. She reiterated her readiness to marry ‘Ali if he was willing to pay the agreed upon mahr. Kamaliya claimed that they had consummated their marriage. She requested that the akhund takes her testimony to the OA and asks the OA to force ‘Ali to pay the settled mahr and perform marriage (nikāḥ), and if he did not intend to do that, allow her to marry another person.
Three male and one female witness corroborated the existence of an agreement for marriage for a certain amount of mahr and they all claimed that they had seen or know that Kamaliya and ‘Ali had consummated their marriage. The first witness, Tukhfatulla Temindar ughli stated that he had seen ‘Ali Salawat ughli and Kamaliya in the same bed. Khabidkhan Merikhan ughli gave the same testimony that he saw Kamaliya and ‘Ali Salawat ughli in the same bed. Muazzin Nureddin ughli gave a similar testimony that he and his wife Madina Yunis qizi knew that Kamaliya and ‘Ali Salawat ughli had conjugal relations at a different location. Madina Yunis qizi repeated the information that her husband had given.
In his report akhund ‘Abdulaziz ughli concluded that because:
1) both sides confirm that there was an agreement/promise to marry (nikāḥlashmagha wäghdä), but there was no marriage ceremony (shar‘an ‘aqdlari olmamish);
2) this marriage was consummated and there are four witnesses who confirmed this (hälwätta bulularin dürt shahid); and
3) the woman had been in this situation for three years and suffered.
His resolution was to grant the woman the right to re-marry. Since the man had conjugal relations with the woman and this caused humiliation, the remaining mahr should be paid and he should be legally obligated to pay the remaining mahr (kanuni wäjihle) according to Russian imperial law.
Commentary/Analysis
The case that I described in this essay is an example of a case when mahr negotiations took place but nikāḥ was not yet performed. Such cases are rare (in most cases ʿaqd nikāḥ was performed) but not non-existent. In this case, Kamaliya agreed to marry ‘Ali and the man agreed to take the woman as a wife. He gave her some gifts and money which were considered as part of mahr. ʿAqd nikāḥ was not yet performed (shar‘an ‘aqdlari olmamish) but even if there was no nikāḥ, the Muslim community still considered the agreement between the two to be binding. A historian of Islam in Russia and Central Eurasia, Danielle Ross, underlines the binding nature of the transfer of the money and suggests that “the Volga-Ural Muslim marriage in the eighteenth century involved the transfer of money from a future husband to either his future wife or to her family as a means of binding him to the marriage. If he subsequently broke the marital agreement, either before or after the marriage has taken place, he forfeited part or all this money.”[6]
Such binding nature signified that Kamaliya could not marry another person. She was asking permission from the OA to let her either marry another person or force ‘Ali to pay mahr and marry her. During the investigation, both sides confirmed that there was an agreement for marriage (nikāḥlashmaga wäghdä); however, nikāḥ was not performed between them.
Mahr as a process
The primary conflict in this case emerged when the groom’s party initiated the partial transfer of the agreed-upon mahr to the bride without specifying a timeline for the full payment. Fakhreddin Bakhtiyar ughli, Kamaliya’s father, reported receiving goods and money totaling 130 rubles, of which he allocated gifts worth 60 rubles to the groom’s side. The nikāḥ was not performed, but Kamaliya underlined that their marriage was consummated despite lacking official validation. She was not married and could not marry another person and she remained in this state for an extended period of three years. Testimony from four witnesses supported Kamaliya’s claim of consummation. Kamaliya’s father regarded ‘Ali’s promise to marry his daughter as legally binding, evidenced by the transfer of money. Both the father and Kamaliya insisted on the payment of the full amount of the mahr al-musammā, without any division into immediate and deferred portions. Their expectation remained that upon the full payment, the nikāḥ could be performed. Kamaliya reaffirmed her readiness to marry ‘Ali provided he honored the agreed-upon mahr of 450 rubles. Fakhreddin Bakhtiyar ughli wrote to the OA, urging them to compel ‘Ali Salawat ughli to either formalize the marriage contract with the full payment of the mahr or grant his daughter permission to marry another man. Despite Kamaliya’s readiness to marry ‘Ali Salawat ughli, and her father’s consent, a complication arose: ‘Ali’s brother, acting as his guardian, indicated that they did not have financial means to pay the rest of the mahr.
Consummation of a valid marriage
According to Islamic law, marriage legalizes sexual relations between a man and a woman. A valid marriage includes a number of components such as marital consent of a bride (in her majority), suitability of the bride and groom (compatible social and economic status), a payment of a proper mahr, the ceremony of ījāb-qabūl (offer and acceptance), and presence of witnesses and a guardian. In the Volga-Urals, the validity of Muslim marriage was also defined by the Russian imperial law. In particular, the imperial law defined a valid marriage as a marriage between a couple who reached their majority according to imperial law (16 years for brides and 18 years for grooms),[7] as marital contract or ‘aqd nikāḥ performed by a licensed (ukazli) imam[8] and registered in the civil registry books (metricheskie knigi), which was introduced for the Volga-Ural Muslims in 1827. However, this case suggests that according to Muslim view and practice, payment of mahr was a more important aspect of the definition of a valid marriage, regardless of whether it was followed by nikāḥ or not.
This case shows that in the Volga-Ural Muslim community, the beginning of the process of transferring mahr might signify not only an agreement to marriage but also permission for the consummation of the marriage. In this instance, the father did not condemn his daughter for engaging in what could be perceived as non-marital relations; instead, he openly approved of the consummation and sought to protect her situation and honor. Witnesses were called upon to verify that a conjugal relationship existed. The way the witnesses testified about their knowledge of the conjugal relations between this couple demonstrates that this was not a covert non-marital affair, but a known and communally approved relationship. This leniency towards non-marital relations was mirrored in the approach of the jurist (akhund) tasked with investigating and resolving the dispute. The akhund’s stance was also geared towards safeguarding Kamaliya’s interests. His ruling granted her the right to seek remarriage since ‘Ali’s actions had brought her disgrace. Furthermore, he mandated ‘Ali to fulfill his obligation to pay the outstanding mahr and use Russian legal enforcement to make him pay his debt (qanuni wäjihle). Interestingly, Kamaliya was not required to seek permission or undergo an official divorce, as ʿaqd nikāḥ had not been formalized, thus enabling her to remarry without such formalities.
Notes:
[1] National Archive of the Republic of Bashkortostan, Fond I-295, op. 3, d. 3317.
[2] Akhund refers to a jurist in the Volga-Ural Muslim communities. On akhunds, see Rozaliya Garipova “Where Did the Ākhūnds Go? Islamic Legal Experts and the Transformation of the Socio-Legal Order in the Russian Empire,” Yearbook of Islamic and Middle Eastern Law 19 (2018).
[3] ‘Izzatullah son of ‘Abdulaziz.
[4] It was a responsibility of imams and akhunds to write a report on the investigation of cases assigned to them. In their reports, they had to include all information about the procedure of the case, testimonies of the plaintiff, the defendant and the witnesses and the decisions they took to resolve their cases.
[5] Mona Siddiqui, “Mahr: Legal Obligation or Rightful Demand?,” Journal of Islamic Studies 6, no. 1 (1995): 15. This concept is widely used in the documents I study.
[6] Danielle Ross “Complex Legal Lives: Separated Muslim Women’s Financial Rights in Russia (1750s–1820s),” Genealogy 6, no. 3 (2022): 72.
[7] The law on marriage age was introduced into the Muslim community in 1836. See also Rozaliya Garipova, “Between Imperial Law and Islamic Law: Muslim Subjects and the Legality of Remarriage in Nineteenth-century Russia,” in Sharia in the Russian Empire: The Reach and Limits of Islamic Law in Central Eurasia, 1550-1917, eds., Paolo Sartori and Danielle Ross (Edinburgh University Press, 2020), 156-82.
[8] The imam had to receive state license which authorized him to perform marriages.
(Suggested Bluebook citation: Rozaliya Garipova, Married Before Marriage (1853), Islamic Law Blog (Apr. 16, 2024), https://islamiclaw.blog/2024/04/16/married-before-marriage-1853/)
(Suggested Chicago citation: Rozaliya Garipova, “Married Before Marriage (1853),” Islamic Law Blog, April 16, 2024, https://islamiclaw.blog/2024/04/16/married-before-marriage-1853/)