October 4, 2022

Does divorce in Marj-ul-Maut (death illness) disentitle the wife from inheritance?

What is Marj-ul-Maut?

In simple terms, a muslim who has the probability of death under his sickness, then that disease is called marj-ul-maut. When a person has disease (marj) which can be the result of his death in near time, this sickness changes his position on divorce and will. 

Baillie, in discussing the subject under the head of divorce, says: –

“It is correct to say that when a man is unable to go out of his home for his necessary avocations, he is sick, whether he can stand up in the house or not. “

How Marj-ul-Maut affects the power of divorce?

Under Hanafi law, if a person divorces the wife during his marj-ul-maut, his wife shall inherit his property if the person dies during iddat.

Shafai, (a school of thought in Islamic jurisprudence) who maintain what may be called the common law position in these matters, held that whether a man’s death took place before or after the expiration of the iddat, his divorced wife was left without any right of inheritance, because the conjugal relation was cancelled by the supervening divorce, But this view was rejected on what approximates to the equitable principle that the cause of the wife’s right to inherit is in the death illness, and as the husband designs to defeat it, his device ought to return to himself by postponing the effect of his act till the, expiration of the, iddat, to prevent the injury which would otherwise fall upon her. (Baillie, page 278.).

So repudiation by a man in his last illness is always referred to as repudiation by a faar or evader, and the principle appears to be the perfectly intelligible doctrine that a wife’s slowly accrued rights shall not be suddenly defeated by the caprice of the husband while labouring under such mental infirmity as usually accompanies the approach of death.

How evasion may be established?

Thus we read in Hamilton’s Hedaya, Vol. I, p. 283: –

” If a husband, being in a besieged town or in an army, repudiate his wife by three divorces, she does not inherit of him, in the event of his death, although that should happen within her iddat: but if a man engaged in fight, or a criminal carrying (being carried) to execution, were in such situation to pronounce three divorces upon his wife, she inherits where he dies in that way or is slain: for it is a rule that the wife of a faar (or evader) inherits of him upon a favourable construction of the law:

and his evasion cannot be established but where her right is inseparably connected with his property, which is not the case unless he be [at the time of pronouncing divorce] sick of a dangerous illness appearing from his being confined to his bed and other symptoms, or in such situation as affords room to apprehend his death: but it is not established where he pronounces divorce in a situation in which his safety is more probable than his destruction.”

Baillie (pp. 280-81) has very much the same description. “Evasion,” he says, “may also be established by other causes which come within the meaning of disease, if death be imminent but if the chances are in favour of escape, the person is to be accounted as one in health. So that one is not an evader though he were surrounded by the enemy, or in the line of battle, or in a place abounding with beasts of prey, or on board ship, or in prison under sentence of retaliation or stoning; because in all these cases a way of escape may be found by some means or other.”

Again in Baillie’s Chapter on Gifts, we read that,

“the most valid definition of death-illness is, that it is one which it is highly probable will issue fatally, whether, in the case of a man, it disables him from getting up for necessary avocations, out of his house or not, such as, for instance when he is a merchant, from going to his shop. “

Apprehension of probability of death

This appears to be the definition in the Fatawa-i-Alamgiri, and other relevant authorities appear to follow the same lines. It would follow that what is meant by death-illness in Mahomedan law is an illness which does in fact cause death, which disables the sufferer at the given time from pursuing his ordinary avocations, and which raises in his mind some apprehension of the probability of death.

Long illness does not mean ‘Marj-ul-maut’

So where the illness is of long duration, but there is no immediate probability or apprehension of death, it is laid down that that is not a death-illness but is to be regarded rather as an indication merely of altered constitution or physical habit.

The test of Marj-ul-maut

The only certain test of death-illness laid down is that a man shall not be able to stand praying-no doubt rather a rough test adopted in days when medical diagnosis was itself rough, but indicating pretty clearly the rigorous meaning which Mahomedan jurists attached to the phrase marz-ul maut.

The Hedaya contains what is called a rule for ascertaining a death-illness, and this will be found in Book LII, Ch. II of Hamilton, Vol. IV, p. 506. Whatever may be the case in the original Arabic, it must be confessed that in the translation the passage is encumbered with much confusion, the particular being confounded with the general, and the sentence being further darkened by parentheses. But, so far as any plain meaning is to be wrung from the words, it would seem that, the test is ” immediate danger of death” or ” apprehension of death”: and this conforms to the principle which has already been deduced.

The same test is to be gathered from the treatise of Maulvi Mahomed Yusuf, the passage being at pages 392-3 of the third volume, paras 2920 to 2924. Here again it is laid down by the Patawa-i-Kazikhan that he only is to be deemed sick who is bed-ridden and incapable of managing his affairs “because the probability from his condition is dissolution,” so that if he divorces his wife, he is a faar, i. e. a runner away, an evader.

“But”, we read, ” a person who is decrepit or suffering from paralysis, whose complaint does not go on increasing every day, is like one in health. So also one who is wounded or is suffering from pain, but who is not by such wound or pain rendered bed-ridden, is like one in health “.

Test laid down by Indian Court

Bombay High Court in Sarabai vs Rabiabai[1] laid down the test that, in order to establish marz ul-maut there must be present at least these conditions :-

(a) proximate danger of death, so that there is, as it is phrased, a preponderance (ghaliba) of khauf or apprehension, that is, that at the given time death must be more probable than life:

(b) there must be some degree of subjective apprenhension of death in the mind of the sick person:

(c) there must be some external indicia, like the inability to attend to ordinary avocations.

Reference

Sarabai vs Rabiabai: (1906) 8 BOMLR 35


[1] (1906) 8 BOMLR 35