In the previous case we saw that the two sides negotiated a marital contract but since the side of the groom could not pay the appointed mahr, nikāḥ was not performed. At the same time, since the groom had already paid a good amount of money and items, the side of the bride allowed consummation of marriage. In the following case we witness an opposite situation, where a marriage contract was negotiated and nikāḥ performed by a licensed imam; however, consummation of marriage was rejected by the side of the bride due to payment of a very little amount of a promised mahr.
On January 24, 1861, the Orenburg Muslim Spiritual Assembly (hereafter the OA) received a petition from a peasant woman Bibifatikha Amirkhan qizi who lived in the Kazan province. Bibifatikha Amirkhan qizi explained that she had married, with her consent, Fätkhullah Musa ughli from her own village in December 1857. She emphasized that the nikāḥ was performed properly and according to Islamic law (nikāḥ sakhīkh wa shar‘ī). The agreed upon prompt mahr (mu‘ajjal) was 200 rubles, and it was to be paid in money and goods. The bride’s side stipulated the goods and items they expected as follows: cattle, mattress (tüshäk), pillow, embellished overcoat for women (kamzul), a coat, 10 pounds of goose feather, boots, and shoes which were all calculated in total at 125 rubles. In addition to this, they requested 75 rubles in cash.
However, Bibifatkiha claimed that her husband only gave her five rubles during the nikāḥ ceremony and did not give anything since that time. He was asking for the consummation of marriage, but Bibifatikha and her family denied it because he had not paid the agreed mahr.
According to Bibifatikha, Fätkhullah Musa ughli came to her parent’s house several times and asked to be allowed to consummate the marriage but the bride’s side refused. Being rejected, Musa ughli allegedly insulted and abused her and her father (khilaf al-shar‘ süzler birle sügep hakarät qiladir).
During one of those unwelcome visits of Musa ughli, Bibifatikha repeated her readiness to be his wife when he pays the agreed upon mahr, and Musa ughli got furious and allegedly told her that she would be divorced and would not be his wife if she kept asking for the mahr (sin minnän mahr sorasañ, minem khatinim degil, miña kharam, küptän talaq sin).
After explaining the conflict from her point of view, Bibifatikha asked for two specific actions from the OA:
First, she requested a certain imam (by providing his name), who was not the imam of the village she and her husband resided, to be appointed to investigate the conflict between her and her husband. Second, upon the investigation, she asked for divorce (tafrīq) from her husband and permission to marry another person. She signed the petition with her sign (tamga), and the imam who penned the petition per her request signed the petition.
The second document in the file shows that the OA listened to the first request of Bibifatikha. The document is a report from the imam whom Bibifatikha requested to be appointed for the investigation of her case. The OA appointed imam Bikchäntay mulla ‘Abdennasir ughli to investigate the case on March 20, 1861, two months after Bibifatikha’s petition was received.
In his report, Bikchäntay mulla included the testimonies of the conflicting parties. Bibifatikha repeated what she had written in her petition to the OA and mentioned that the parties had recorded the items and money to be paid as prompt mahr at the time of the nikāḥ, when Musa ughli paid only 17.5 rubles (in her petition she had written that he had paid five rubles). She also gave more details about Musa ughli’s unwanted visits to her home in the company of other men, how he forcefully tried to take her to his home, how he verbally abused her and her father, how he refused to pay mahr and declared her to be divorced if she kept asking for the mahr.
In his response to these accusations, Musa ughli claimed that he tried to give them the rest of mahr when he visited the house of Bibifatikha but she and her father did not accept his offer. According to Musa ughli, Bibifatikha and her father declared that they would apply for a separation/divorce order since he allegedly abused them by expressions that require a divorce (talaq düshürdäy süzlär bilän sügäseñ). Musa ughli stated that he agreed to pay the remaining mahr which was recorded in the civil registry, however, he could not set a date for that payment and gave a vague promise which depended on a good harvest.
After the responses of the plaintiff and the defendant, imam Bikchäntay gathered testimonies of witnesses. The first witness was a 42-year-old man who was present at the Bibifatikha and Musa ughli’s nikāḥ as the yauchy (matchmaker). He admitted that Musa ughli paid 17.5 rubles at the time of the nikāh and confirmed that he did not pay the rest of the mahr. Moreover, he corroborated Bibifatikha’s allegations that Musaughli refused to pay the rest of the mahr and told him “if I would pay mahr I could find another girl. Let her rot in her father’s house if she would ask for mahr.” The second witness, 25-year-old Ghaineddin Ghubay ughli told imam Bikchäntay that he accompanied Musa ughli in May 1859 to Bibifatikha’s home and he heard that Bibifatikha and her father gave their consent for Musa ughli taking Bibifatikha to his home after he paid the mahr. Ghaineddin testified that Musa ughli refused to pay the remaining part of the mahr. The third and the fourth witnesses were also people who accompanied Musa ughli in his attempts to take his wife and they told imam Bikchäntay the same information as the previous witnesses. There were two more witnesses who had been visitors at Bibifatikha’s home at the time of Musa ughli’s visits and their testimonies also corroborated Bibifatikha’s allegations.
The village elder (sel’skii starshina) ‘Ubaydullah Nigmätullah as well as the investigating imam Bikchäntay signed the report.
Commentary/Analysis
This case serves as one of many examples showcasing women’s petitions. In disputes over mahr, it was predominantly women who sent these petitions, though occasionally fathers filed petitions on behalf of their daughters. These documents offer a chance to hear the voices of Muslim women from the mid-nineteenth century. In these petitions we can see how women framed their concerns, how they explained their understanding of the concept of mahr, how they chose certain religious authorities to investigate their cases, and how women defended their rights. They also knew how to obtain a special paper (gerbovaia bumaga) from a local land court and where to pay for a stamp (marka), and how to find a scribe (pisar’) or a literate person who could write a petition for them. All these provide unique and invaluable glimpses into the lives of ordinary Muslim women in central Russia. Clearly, these women regarded mahr as their rightful property, demonstrated a keen awareness of their rights and were adept in engaging with prominent jurists and filing petitions with the OA.
The condition of a full mahr in return for conjugal relations
In this case, a man gave his daughter, Bibifatima, in marriage for a mahr of 200 rubles, yet the groom, Fätkhullah Musa ughli, only paid 17.5 rubles at the time of the marriage ceremony. Even though nikāḥ ceremony took place, when the husband attempted to take his wife to his home and initiate conjugal relations, the woman’s father intervened, refusing to allow her to leave or engage in conjugal relations with her husband. Despite Fätkhullah’s repeated visits to his in-laws’ home, pleading to consummate the marriage, the father remained resolute, insisting that he would not permit his daughter to join her husband until the full mahr was paid.
This case offers a clear insight into how Volga-Ural Muslims viewed mahr. It complements the previous case that I have introduced by underscoring the expectation that mahr should be paid in full at the outset of marital life. Unlike the first case, however, in this case the ʿaqd nikāḥ was performed. Despite their official status as a married couple, failure to pay full prompt mahr meant that they were not permitted to establish a separate household. As in numerous similar instances, Bibifatikha wrote that her husband “did not give her mahr” (mahrmne virmayder). The father’s refusal to allow conjugal relations between his daughter and her husband until the mahr was fully paid emphasizes the significance attached to the completion of this financial obligation. Thus, in this case, the validity of the marriage hinges not solely on the performance of ʿaqd nikāḥ by a licensed imam, but rather on the fulfillment of the financial transaction represented by the mahr payment.
Tafrīq (firqat)[2]/divorce: Mahr disputes as reason for divorce
When Bibifatikha requested her mahr, Fätkhullah Musa ughli callously responded, “If you ask for mahr from me, you are not my wife” (sin minnän mahr sorasañ, minem khatinim degil, miña kharam küptän talaq sin). While mahr traditionally served as financial protection for women post-divorce, its significance in the Volga-Ural region often resulted in disputes leading to divorce. In Ḥanafī law, rather than being perceived as a gift, unpaid mahr was viewed as a debt. Mona Siddiqui, in her analysis of Ḥanafī jurists’ perspectives on mahr, emphasizes that “[t]he husband remains in debt to his wife, who has every right to claim her due except that with no specification of time she may have to wait until the dissolution of the contract or upon the death of the husband.”[3] Therefore, jurists advocated that a portion of the mahr be paid at the contract’s initiation or upon demand, with the remainder due upon the dissolution of the contract. In this case Bibifatikha’s husband initially pledged to pay the outstanding prompt (mu‘ajjal) mahr after a fruitful harvest, but later reneged, claiming he had financial constraints. Ultimately, the case culminated in divorce, granting Bibifatikha the freedom to remarry.
Escalation of a conflict
Various testimonies demonstrate that conflict escalated gradually. Musa ughli said that he came to Bibifatikha’s house and tried to give mahr to her, but she and her father did not accept the payment. Bibifatikha in her testimony to the imam underlined that her husband came to her house and insulted her and her father, and that he also came with some men, and tried to abduct her and take her to his house forcefully. Two witnesses admitted that they helped Musa ughli to abduct his wife. And Musa ughli finally admitted that he promised to pay mahr if there was good harvest.
Mahr and divorce
The scenario where married women remained in their parental home while continuously requesting their mahr posed an inherent challenge, exacerbating tensions and frequently culminating in divorce. Many instances involving women persistently seeking their mahr concluded with marital dissolution. Indeed, the majority of the mahr disputes I examined ultimately ended in divorce. Notably, in other divorce petitions, the recurring issue of non-payment of mahr emerged as a prominent catalyst for marital breakdown. While scholarly literature often delves into mahr and divorce in the context of the deferred mahr payment following a divorce which serves as a financial help for women, the cases I have analyzed present a distinct perspective: mahr disputes themselves often precipitate divorce, serving as a primary cause. In essence, while mahr is conventionally viewed as a form of financial protection post-divorce, these numerous and noteworthy disputes illustrate how mahr can become a catalyst for divorce.
It should be underlined that this case ended with tafrīq which signifies judicial divorce in which case the woman does not lose her property. The imam decided that Bibifatikha should receive the rest of the mahr from her husband and that Musa ughli should be obligated to pay the rest of the mahr to Bibifatikha.
Women’s agency in appointing a specific imam to investigate the case
It is important to emphasize that in this case, as well as others, we witness the agency of women not only in drafting petitions to the OA but also in requesting the appointment of a specific imam known for his knowledge, piety, and favorable decisions regarding women. Bibifatikha, for instance, requested the appointment of imam Bikchäntay mulla, who was not the imam of her local congregation. Typically, imams were tasked with handling cases within their own congregation, associated with a specific mosque. However, in this instance, the woman sought the appointment of an imam from a different congregation, showcasing her deliberate choice. Furthermore, imam Bikchäntay’s handling of the issue is noteworthy. He diligently located and summoned six witnesses to testify in the case, all of whom supported the woman’s claim. Additionally, he meticulously prepared separate documents for the witnesses to affirm their testimonies. This illustrates that the imam’s authority alone was not sufficient; marital disputes were regarded as social issues involving the wider community. The involvement of six witnesses underscores the significance of the matter within society.
Notes:
[1] National Archive of the Republic of Bashkortostan, Fond I-295, op. 3, d. 4861.
[2] Tafrīq: annulment of the marriage contract.
[3] Mona Siddiqui, “Mahr: Legal Obligation or Rightful Demand?,” Journal of Islamic Studies 6, no. 1 (1995): 20.
(Suggested Bluebook citation: Rozaliya Garipova, Married but not Married (1861), Islamic Law Blog (Apr. 18, 2024), https://islamiclaw.blog/2024/04/18/married-but-not-married-1861/)
(Suggested Chicago citation: Rozaliya Garipova, “Married but not Married (1861),” Islamic Law Blog, April 18, 2024, https://islamiclaw.blog/2024/04/18/married-but-not-married-1861/)