Mahommedan law, so far as it is administered by the courts of British
India for Sunnites of the Hanafite school--that is, for the great bulk
of Mahommedans--has attained a fair degree of precision, owing to the
care bestowed on their decisions by the judges of those courts, and the
assistance derived from Mahommedan lawyers. But much difficulty is
experienced as soon as we come to deal with Mahommedans of any other
description. No doubt in India any clearly-established custom prevalent
amongst a well-defined body of persons would be recognized, or any rule
of law founded upon texts which they accepted as authoritative. But it
is not always easy to determine when these conditions have been
satisfied. And to allow Mahommedans to set up a standard of rights and
duties different from that of the bulk of their correligionists without
this proof would lead not only to confusion but injustice. There is the
further difficulty that Mahommedan law, as applied to any Mahommedans
except those of the Hanafite school, has as yet been comparatively
little studied by modern lawyers, so that very little that is certain
can be said about it. There is, however, a considerable body of Shiites
in India whose legal system undoubtedly differs in some material
particulars from that of the Sunnites. The Mahommedans of Oudh are
generally Shiites, and Shiah families, mostly of Persian descent, are to
be found in other parts of India. The following points seem clear. A
marriage which the parties agree shall last for a fixed time, even for a
few hours only, is a valid marriage, and at the expiration of the time
agreed on the marriage ceases to exist. The relatives of the deceased,
whether male or female, and whether tracing their connexion through
males or females, may be sharers or residuaries. Both as sharers and
residuaries the children can claim to take the place of their parents in
the succession upon the principle of what we call representation. If
there are parents or descendants of the deceased, and the sharers do not
exhaust the property, the surplus is distributed amongst the sharers of
that class in proportion to their shares. If the property is not
sufficient to pay in full the shares of all the sharers, the shares do
not abate rateably; e.g. as between daughters and the parents, or the
husband, or the wife of the deceased the whole deduction is made from
the daughters' share.
AUTHORITIES.--(Mahommedan Law), Neil Baillie, _Digest of Mahommedan
Law_ (London, 1865); Sir R. K. Wilson, _Introduction to the Study of
Mahommedan Law_ (London, 1894); _Digest of Anglo-Mahommedan Law_
(London, 1895); Charles Hamilton, _The Hedaya translated_ (London,
1791); Syed Ameer Ali, _Lectures on Mahommedan Law_ (2 vols.,
Calcutta, 1891, 1894); Mahomed Yusoof, _Tagore Law Lectures_ (Calcutta
1895); Alfred v. Kremer, _Culturgeschichte des Orients_ (2 vols.,
Vienna, 1875). (W. Ma.)
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