the Missing Man.” After analyzing both the text [ matn] of this adīth and the two
existing chains of transmission [ isnād], Zayla‘ī reached the conclusion that the
alleged prophetic adīth is weak [ aīf] and must be rejected [ munkar].59
Yet, despite the fact that it is possibly unsound, this particular adīth has
remained the most important indicator for the Hanafi scholars’ rulings regarding
the rights of the missing man’s wife to obtain a divorce and enter into another
marital union while her husband was still in absentia. Assuming that al-Mostari’s
expert opinion was shared by the judges who practiced shari‘a in Ottoman Bosnia,
how did the Bosnian Muslim women whose husbands were missing ever obtain a
divorce? How did the position of Bosnian Muslim women vis-à-vis their missing
husbands differ from that of other Muslim women elsewhere in the Empire?
The Importance of Imperial Geography: “I Have Become a Shafi‘ite”
According to available sources, such as the shari‘a court records [ sicil/ sijill] from
Ottoman Bosnia, some abandoned Bosnian wives did eventually receive news of
their husband’s fate, and the official pronouncement of the death of their husbands
was recorded by the shari‘a court. An interesting example of this practice is recorded
in an unusual court document in a copy of al-Mostari’s al-Fatāwā al-Amadiyya al-
Mūstāriyya that somehow found its way to the Süleymaniye Library in Istanbul.
It is difficult to reconstruct how and when this particular text left Bosnia and
became a part of the archive in Istanbul.60 However, judging from the first few
loose pages of the manuscript—which contain fatwa s by various eighteenth-century
Bosnian mufti s as well as loose documents that were drafted at the shari‘a court
in Mostar—it had probably been in the possession of someone associated with
that court. For example, on page eight is a record of the registration of a marriage
Zečević, Missing Husbands, Waiting Wives
347
contract before four witnesses at the shari‘a court in Mostar in 1799. The text of
this record indicates that Husayn b. Churaq (?) and a mature woman who was
not a virgin [ thayyiba] named Safiye bint Muhamed signed a marriage contract
and agreed on a mahr (nuptial gift)61 of three thousand dirham s. This particular
record of a marriage contract is unremarkable in the context of its time and place;
however, a subsequent document written on the same page as the contract makes this
marriage relevant for the purposes of the present discussion. This second document
indicates that Mustafa, the husband of the aforementioned [ mazbūre] Safiye, had
been missing for nine years. The text of the document recounts that Ishaq Çelebi,
preacher at the Sultan Süleyman mosque, and his relative Salih Çelebi appeared at
the shari‘a court and under oath informed the officials of the court that the above-
mentioned missing Mustafa had died. The official pronouncement of Mustafa’s
death was witnessed by several men of probity, and the case was thereby finally
resolved. Consequently, Safiye’s status had changed and—as a widow—she had
become available for marriage with Husayn b. Churaq.62
Unfortunately, nothing is known of Safiye’s condition during the nine years of
“waiting” for news of her first husband Mustafa, since no other available court
documents from late eighteenth-century Mostar offer any information regarding
this particular case. However, if one takes into consideration fatwa texts recorded
by the mufti of Mostar, Ahmed al-Mostari, shortly before his fellow-townswoman
Safiye became the wife of Mustafa, it is clear that she had no other option but to
stay married to him until his death had been witnessed by two reliable witnesses.
Considering the vast territory spanned at the time by the Ottoman Empire, and the
multiplicity of legal and cultural practices within its borders, were the situations
of other Ottoman Muslim women who were also the wives of missing Muslim
husbands any better? Did they have more options to leave the conjugal house while
their husbands were in absentia?
Available sources on this topic reveal that in those areas of the Ottoman Empire
where—unlike Bosnia—multiple legal schools coexisted, women could and did
switch affiliation to a school that held a more favorable opinion regarding the
required waiting period. Basing her analysis of the interaction between Islamic legal
theory and practice on an examination of legal texts and documents originating
in eighteenth-century Ottoman Palestine and Syria, Judith Tucker has observed
the following practices regarding legal rulings concerning cases of missing
husbands:
A Hanafi qadi, however, could not easily annul the marriage when a husband
went missing. For him, the marriage could be terminated only if a woman
had received news that her husband had divorced her, had died, or become
apostate. The news had to be reported to her by trustworthy people, and she
had to “believe it in her heart.” Otherwise, she was still married, regardless
of the length of her husband’s absence or her material conditions, according
to the Hanafi mufti s. The inability of the presiding Hanafi judge to grant an
annulment on other grounds was easily circumvented, however, by allowing
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a Shafi’i of Hanbali na’ib to preside over such cases. Indeed in all three
towns it is clear that such a pinch hitter was invited by the Hanafi judge to
oversee such cases, thus allowing fiskh in cases of desertion or non-support
to become a common ruling, despite the absence for such a ruling in classical
Hanafi jurisprudence.63
Tucker’s keen observation leads to two important conclusions. First, Hanafi judges
who practiced law in eighteenth-century Bosnia on the one hand, and Syria and
Palestine on the other, appear to have been consistent in following the Hanafi
doctrine according to which the wife of a missing man had to wait for confirmation
of her husband’s death before she could contract another marriage. This should
come as no surprise, considering that this doctrine had been prescribed in the
most important Ottoman and other Hanafi authoritative texts that Ottoman judges
had to take into consideration while making their rulings. Second, the place of an
Ottoman woman’s residence within the Empire was of crucial importance for the
possible circumvention of this ruling. The more legal schools were represented in
a given area, the more options were available for an Ottoman woman to divorce
her missing husband.
One particular (unfortunately unsigned) fatwa written in the margin of a copy of
al-Mostari’s collection of fatwa s suggests that some Bosnian mufti s were ready to
permit the practice of choosing a legal school that held an opinion more favorable
to Bosnian women seeking a divorce from their missing husbands. The text of the
fatwa reads as follows:
Query: After the wife of a missing man spent all the alimony that was left
behind by her husband, she declared that she changed her legal school
affiliation and hence was no longer a follower of the Hanafi but of the Shafi�
�i
school of law ( taşşafa‘a oldu—lit. “she turned Shafi‘ite”). Can she [legally]
do that?
Answer: It is permissible to change schools and follow Imam Shafi‘ī.64
The absence of authoritative sources and explanation behind this ruling do not
necessarily indicate either the mufti’s lack of knowledge of Hanafi authoritative
texts, or his failure to comply with the usual procedure of delivering a correct fatwa.
Rather, it suggests his willingness to provide a waiting wife with the possibility
of obtaining the termination of her marriage, something that could not have been
granted her otherwise as long as the fate of her husband remained uncertain. It is
difficult to tell with certainty where the “turned-Shafi‘i” Bosnian Muslim woman
would have gone to get such a favorable opinion, since all judges in Ottoman Bosnia
belonged to the Hanafi school of law. It is perhaps not far-fetched to assume that
some women who knew of the interpretive differences among various schools of
Islamic law on this issue might have traveled outside Bosnia, where they could
find non-Hanafi judges willing to provide them with a favorable ruling. Ultimately,
Nizama—
Zečević, Missing Husbands, Waiting Wives
349
journey to resolve their legal disputes and find more
favorable solutions to their life problems.65
Conclusion
A close reading of several fatwa s from al-Mostari’s collection sheds light on two
unexplored aspects of Islamic legal culture in the Ottoman province of Bosnia: the
production of the fatwa genre of legal texts, and the construction and re-production
of gendered norms and regulations by a “provincial” mufti from the eighteenth-
century town of Mostar. Specifically, the analysis of several fatwa texts that dealt
with the problem of the missing husband [ mafqūd] and his waiting wife [ zawjat
al-mafqūd] provides evidence regarding a mufti’s re-interpretation of the issues at
hand in light of the pre-existing body of Hanafi authoritative texts.
The reliance of al-Mostari on legal precedents was in no way exceptional,
since all expert-jurists examined the mundane problems of their time in light of
the available authoritative texts belonging to their respective madhhab s. As with
any other reader, al-Mostari too subjected his reading material to a contextual
interpretation determined by his “here and now.” In this sense, al-Mostari’s fatwa
texts constitute important source material for a two-dimensional analysis of a mufti’s
interpretive process. On the diachronic level, they bring to the surface bits and pieces
of other texts which had over time become the most authoritative Hanafi doctrinal
texts, revealing in that way the genealogy of the debate on the issues at hand. On
the synchronic level, they reveal how, by choosing out of a variety of pre-existing
doctrinal opinions at his disposition, an eighteenth-century Bosnian mufti would
opt for the one which he deemed most suitable to the context of his time.
The problems arising from the absence of missing Muslim men are discussed in
the majority of the authoritative texts that formed al-Mostari’s “reading repertoire.”
Furthermore, the overwhelming majority of the most authoritative Hanafi scholars
discussed these problems under the specific heading “Chapter on the Missing Man.”
The interest of Muslim jurists in the category of “missing man” is understandable
if one takes into consideration the practical implications of a man’s indeterminate
absence, such as, for example, the vulnerability of the property that he left behind.
Hanafi jurists developed various strategies to safeguard missing men’s property,
indicating a high level of concern for the preservation of their exclusive rights
over their property while in absentia. In the opinion of the jurists, he was de jure
still alive and hence deserving of all the rights to which a mature Muslim man was
entitled. In addition to safeguarding missing men’s property, Hanafi jurists ensured
that their rights over their wives would also remain unchallenged. Consequently, a
missing man’s wife was to remain in the conjugal house as long as there was any
doubt regarding his life and death. In his absence, she was entitled to that part of
his property which would have been used for her maintenance, had her husband
been present in the conjugal house.
A cursory glance at the rights and responsibilities of the missing man and his
waiting wife may lead one to conclude that Hanafi jurists expended significant
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efforts towards minimizing the impact of a Muslim man’s absence from his
domicile and ensuring that both he and his wife retained their rights and fulfilled
their responsibilities just like any other married couple. Yet, closer examination
of the practical consequences of these regulations indicates that Hanafi jurists de
facto undermined the provisions of the marriage contract [ nikâh] according to
which both partners were legally entitled to certain rights and were obliged to fulfill
certain responsibilities. The marital contract, which embodied asymmetrical rights
for the partners in a marriage, was in itself a legal tool used for the perpetuation
of strictly separated gender roles for husband and wife: the husband had exclusive
rights over his wife, and the wife was entitled to the nuptial gift [ mahr] and to
alimony [ nafaqa], both of which were to be provided by the husband. In addition,
they enjoyed sexual rights over each other, and shared responsibilities in nurturing
their children through different but interdependent processes of fathering and
mothering. Finally, upon entering into the marriage union the partners were obliged
to cohabitate in the conjugal house so that marital harmony conditioned on the
fulfillment of these gendered roles and responsibilities would not be undermined.
Considering this wide range of roles that were legally prescribed and sanctioned
by the marriage contract, it is clear that a missing man was technically in breach of
most of its provisions. Yet, Hanafi jurists did not seem to take that into consideration
in making their rulings regarding the rights and responsibilities of the missing
man and his abandoned wife. Instead of protecting the institution of marriage and
all the rights and responsibilities of both partners, they protected all the rights of
the married male partner and some of the rights of his wife. In addition, they held
that the male partner had to fulfill some of his marital obligations, while his wife
was assigned all the obligations shouldered by a married woman. The husband’s
failure to cohabitate with his wife and to act as her sexual partner, and his inability
to be the head of the household and a father to his children, all of which de facto
resulted from his absence from the conjugal house, did not factor into the jurists’
consideration of the rights and responsibilities of the missing man. More important
than the jurists’ failure to take into consideration the disturbance of gender roles in
the marriage union whenever the husband was not present in the conjugal house
is their reluctance to recognize that in the absence of her husband, the wife had to
assume some of his male roles, such as the disposition of household income and
the exclusive care of children.
The fatwa s of al-Mostari have brought to the fore several important Hanafi
authoritative texts which dealt with the problem of the missing man and his
abandoned wife, offering important insight into the genealogy of the Hanafi legal
debate on this issue. For example, while elaborating his opinion which denied the
missing man’s wife the right to obtain a divorce from her absent husband as long
as she was uncertain of her husband’s condition, al-Mostari revealed that Hanafi
scholars chose to base their ruling on a prophetic tradition which was not used by
any other Sunni madhhab. The disregard of this particular tradition in the fiqh works
of other madhhabs and in the major Sunni adīth collections suggests that it may
have been fabricated, a consideration that even some prominent Hanafi scholars
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351
such as Zayla‘ī expressed in their works. Regardless of the dubious origin of this
adīth, the Hanafi scholars eagerly took it as textual evidence [ dalīl] for their
unfavorable rulings regarding the options of the wife of a missing man wishing to
leave the conjugal house while her husband was in absentia. Repeating this ruling
by quoting the opinions of the prominent Hanafi jurists Sarakhsī, al-Marghīnānī
and Mullā Husraw, al-Mostari himself participated in the perpetuation of a ruling
according to which the rights of the male partner in a marriage were safeguarded
while the rights of his wife were seriously neglected.
The general agreement among the Ottoman Hanafi jurists regarding the rights
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