WORKING PAPER

Ninja Bumann
University Assistant (praedoc)/PhD student
University of Vienna

Moral Instruction or Punishment?

“Runaway” Wives before Habsburg Sharia Courts
In December 1900, a petition signed by several Muslim nobles from whole Bosnia and

Herzegovina was handed over to Benjámin Kállay, the joint k.u.k. Finance Minister and
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governor of Bosnia and Herzegovina. This petition demanded in general more autonomy in
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Islamic education and administration,1 but it also claimed that it often happened that a Muslim
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woman left her husband against his will and without any official divorce. This would “be
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opposed to the religious institutions” and “destroy the fundament of Islamic marriage and
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family life”. Therefore, it demanded that the Sharia courts should have an enforcement power
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and should be authorized to issue fines and prison sentences.2

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This demand points to the debates on the enforcement powers of Sharia courts, which
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were incorporated into the Habsburg administration after the occupation of the Ottoman
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provinces of Bosnia and Herzegovina in 1878. In general, the newly installed Austro-Hungarian
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authorities took over the Ottoman judicial system, according to which marriage and family
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affairs were regulated by the respective religious institutions. Thereby, also the Sharia courts,

which dispensed justice according to Islamic law, were incorporated. However, the Provincial

1
This petition is often seen as a manifesto of the Muslim movement for religious autonomy. The Austro-Hungarian
administration met most of the movement’s demands with the Statute of Autonomy enacted in 1909, which granted
the Muslim religious community greater freedom in the administration of religious institutions and foundations
and in educational matters. See Bougarel, Xavier (2018): Islam and Nationhood in Bosnia-Herzegovina. London:
Bloomsbury Academic, pp. 17–20; Donia, Robert J. (1981): Islam under the Double Eagle. The Muslims of Bosnia
and Hercegovina. 1878–1914. New York: Columbia University Press (East European Monographs, 78), esp. pp.
128-159; Šehić, Nusret (1980): Autonomni pokret Muslimana za vrijeme austrougarske uprave u Bosni i
Hercegovini. Sarajevo: “Svjetlost”.
2
Predstavka podnešena Njegovoj Preuzvišenosti ministru Kalaju 19. decembra 1900 godine u Sarajevu (1903).
In: Spisi islamskog naroda Bosne i Hercegovine u stvari vjerskoprosvjetnog uređenja i samouprave. Novi Sad:
Društvo “Rad”, pp. 89–138, here pp. 136–138.
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Government (Zemaljska vlada/Landesregierung) in Sarajevo, which was the highest

administrative body in Bosnia and Herzegovina itself, also adapted the Sharia court system, and

enacted between 1878 and 1900 a total of 387 laws for the regulation of Sharia courts. One of

the most fundamental modifications was the establishment of a Supreme Sharia court in

Sarajevo in July 1879,3 which acted as an appeal body for decisions from the first level Sharia

courts at the district level (šerijatski sudovi prve molbe).4 Furthermore, the scope of Sharia

courts was clearly limited by the Regulation on the Order and the Scope of Sharia courts issued

in 1883 by the Provincial Government: Accordingly, Sharia courts were competent to regulate
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matters in relation to matrimonial law between Muslim couples, law and duties between Muslim
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parents and children as well as inheritance and estate matters of Muslims.5

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In practice, the limitations of the functions of Sharia courts brought by this Regulation
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on the Order and the Scope of Sharia courts led often to ambiguities and misunderstandings on
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the division of competences between the Sharia and the civil and criminal courts. Especially
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cases of “runaway” wives, which left their husbands without any official divorce, caused wide
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disputes on the competences of Sharia court and the enforcement of its judgments. The present
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paper aims to investigate these debates and the correspondent administrative practices based on
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court records from the Supreme Sharia court. Thereby, it outlines, on the one hand, the legal
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hurdles as well as stalemates in the reformed Islamic court system under Habsburg rule, which
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had a gendered effect on the agency of men and women. On the other hand, the texts investigates

the problematic interaction between the Sharia and the criminal courts in cases of “runaway”

3
This appeal body was first called “Sharia Court of Second Instance” (šerijatski sud druge molbe/Scheriatsgericht
zweiter Instanz), and was only in 1883 officially renamed as Supreme Sharia Court (Vrhovni šerijatski
sud/Scheriatsobergericht).
4
See Bećić, Mehmed (2017): Novi pogled na transformaciju šerijatskih sudova u Bosni i Hercegovini. Da li je
1883. godine nametnut kolonijalni model primjene šerijatskog prava? In: Godišnjak pravnog fakulteta u Sarajevu
LX, pp. 59–82, here pp. 65–66; Durmišević, Enes (2013): Šerijatski sudovi u Bosni u drugoj polivini XIX stoljeća.
In: Anali Pravnog fakulteta Univerziteta u Zenici 12, pp. 75–89, here pp. 84–85; Karčić, Fikret (2005): Šerijatski
sudovi u Jugoslaviji 1918–1941. Sarajevo: El-Kalem, p. 24.
5
No. 7220/III (29.08.1883): Verordnung über die Organisation und den Wirkungskreis der Scheriatsgerichte. In:
Sammlung der Gesetze und Verordnungen für Bosnien und die Hercegovina. Sarajevo: Landesdruckerei, pp. 538–
543.
2
wives and concubinage. At last, the text draws on the increasing claims by the local population,

mainly kadis, but also Muslim religious leaders and nobles, for granting penal powers to Sharia

courts, which were based on moral claims regarding marriage and gender relations. As the paper

outlines, the debates and administrative practices heavily focused on issues of “morality” and

penal powers, thereby ignoring practical solutions to provide women a resort to their legal

difficulties.

Missing Divorce Opportunities for Women

According to Islamic law, men could divorce a wife at any time without indicating any
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specific reason, while women had only very limited options for filing a divorce. They could
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either try to arrange a consensual so-called hul-divorce, whereby they had to abdicate from their
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right on the mehr, the bridal gift or the property that the husband or a third party paid or assured
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the wife in return for the marriage, and the nafaka, alimentation, to the (former) husband. A
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unilateral divorce was only possible in very specific cases, such as in the case of apostasy from
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Islam, alcoholism or infertility on the husband’s side.6 In case of a divorce (besides the hul-
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divorce), the woman had the right to receive her mehr and a nafaka for the time of the iddet.7
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This constellation forced many women to leave their husbands without being legally divorced
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from them.
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The archival documents from the Supreme Sharia court generally do not contain a lot of

information on the reasons that caused women to abandon their husbands. Some court cases

proceeded at the Supreme Sharia court indicate, however, that domestic violence and ill-

treatment could play a certain role.8 This was, for instance, the case when Emina Duratović

6
See Eherecht, Familienrecht und Erbrecht der Mohamedaner nach hanefitischem Ritus (1883). Wien: K.k. Hof-
und Staatsdruckerei, pp. 57–86; Sladović, Eugen (1926): Islamsko Pravo u Bosni i Hercegovini. Beograd:
Izdavačka knjižarnica Gece Kona, pp. 75–77, 80.
7
Iddet means the prohibition of any intimate intercourse with a man that women have to observe after a divorce
or widowhood for a certain period of time (usually three months). See Eherecht, pp. 43–54, 57–86, 90–91;
Sladović, Islamsko pravo, pp. 75–77, 80, 91.
8
Hana Younis outlined several court cases from the Supreme Sharia court, in which women left their husbands
due to domestic violence. See Younis, Hana (2015): Razvjenčanja kroz dokumente Vrhovnog šerijatskog suda
Sarajevo u prvim decenijama nakon Austro-Ugarske okupacije. In: Eren Halit (Ed.): Proceedings of the Fifth
3
from Bišćani in the district of Prijedor left her husband and moved to her father‘s house in

spring 1886. This caused her husband Abdul Hamid Kadić to file a suit at the local district

Sharia court in Prijedor on so-called “living together” (zajedničko življenje), whereupon both

court parties were interrogated. Thereby, Emina Duratović claimed that her husband would

insult and beat her without any reason, and that she had, therefore, fled from him. However, as

her husband denied these accusations and Emina could not prove them, they were not further

investigated. Instead, Abdul Hamid Kadić agreed to find a separate house for them and to

provide enough food and clothing for Emina, which was also confirmed by two guarantors.
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Therefore, the local district Sharia court ruled that Emina had to return to her husband.9
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Other court cases suggest that some “runaway” wives tried to evade from a forced
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marriage. This illustrates the court proceeding between Hava Hadžić and Hasan Uščuplić from
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the village of Gajčine in the district of Vlasenica, who had married in November 1892. In June
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1893, Hasan Uščuplić went to the district Sharia court in Vlasenica and reported that his wife
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Hava had left him. When the couple was interrogated by the court, Hava claimed that she had
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been forcefully kidnapped by Hasan and then locked up for eleven days until she managed to
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run away. Therefore, she did not know about any marriage and she also stated that she did not
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want to marry Hasan. The archival court documents do not reveal whether the Supreme Sharia
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court acknowledged Hava᾽s claims or whether it recognized the first alleged marriage of Hava
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Hadžić. They just indicate that Hava Hadžić married another man named Ahmed Bajić in the

district of Zvornik, but it is not known if this second marriage was officially recognized.10 This

International Congress on Islamic Civilization in the Balkans. Sarajevo: IRCICA, Research Centre for Islamic
History, Art and Culture, pp. 419–436, here pp. 430–432.
9
Arhiv Bosne i Hercegovine (ABiH), Vrhovni šerijatski sud (VŠS), box 17, B 1886/6: Kadić Abdul Hamid protiv
žene Emine Duratović zbog zajedničkog življenja, Prijedor.
However, Emina did not return to Abdul Hamid who then filed an appeal at the Supreme Sharia court. Since he
filed the objection after the usual deadline of 14 days expired, the Supreme Sharia court did not intervene.
Domestic violence also played a role in following case: ABiH, VŠS, box 17, B 1885/2: Sekić Omer protiv žene
Behare zbog zajedničkog življenja, Derventa.
10
ABiH, VŠS, box 19, B 1893/9: Bajić Ahmed protiv Have Hadžić zbog razvoda braka, Vlasenica.
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case further illustrates that women often left their husbands in order to remarry another man, or

at least live in concubinage with him.11

In this sense, the district Sharia court in Zenica complained in a letter to the Supreme

Sharia court in February 1889 about an apparently unlawful “nuisance” (nepodopština), which

would often be detected during divorce trials. As kadi Gjonlagić claimed, women who had left

their husbands did often not wait until an official divorce before living together with another

man. Therefore, he asked the Supreme Sharia court for “an instruction on how such an illegal

procedure, which is dangerous for the general morality, could be prevented” (naputak kako bi
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se ovakom protuzakonitom, po opču ćudorednost pogibeljnom postupku predusresti moglo).

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The Supreme Sharia court subsequently explained that women had in certain cases a right to
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leave their husbands, for instance, if they had not paid the mehri muaddžel, the bride price that
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has to be paid at the registration of the marriage.12 In such cases, these women were still entitled
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to receive alimonies by their husbands and they could not be forced to return to them. However,
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women who left their husbands without any valid reason did not have any right on alimony, but
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also those women could not be forced to return to their husbands.13

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Hence, husbands who had been abandoned by their wives usually had the right to file a
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claim on “living together” (zajedničko življenje) at a Sharia court. In such cases, the Sharia
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court generally had to investigate if the mehri muaddžel had been paid to the wife.14

11
This was, for instance, the case in following court proceedings: ABiH, VŠS, box 27, B 1909/6: Zahirović
Mustafa protiv supruge Fate Ibričević zbog prisilnog ženinog povratka, Gračanica; ABiH, VŠS, box 30, B 1913/21:
Likić Zejna protiv supruga Mušana Berberovića zbog razvoda braka, Kladanj.
12
It could be agreed that the mehr (bride price) could be fully or partially paid at the marriage registration (mehri
muaddžel) or that it could be paid by installments (mehri mueddžel). See Eherecht, p. 28.
13
ABiH, VŠS, box 52, E 1889/4: Šerijatski sud u Zenici traži mišljenje o prisilnim sredstvama od muževa odbjeglih
žena koje nisu razvjenčane u stupile u drugu bračnu zajednicu.
14
In one case, it was ruled that the husband had to pay the mehri muaddžel, but that the wife still had to return to
him. See ABiH, VŠS, box 17, B 1887/11: Arif Golić protiv supruge Umije Omerbašić zbog zajedničkog življenja,
Derventa.
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Nevertheless, in most cases, the Sharia court ordered those “runaway” wives to return to their

husbands.15

Lacking Enforcement Powers and Legal Loopholes

Judgements by the Sharia courts, which ordered “runaway” women to return to their

husbands, often cause ambiguities around their enforcement. In this sense, the local district

Sharia court in Gradačac turned in March 1887 to the Supreme Sharia court, reporting that the

court would frequently sentence women to return to their husbands. It was, however, unsure if

and which coercive means it could use in order to bring a disobedient woman back to her
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husband. The Supreme Sharia court then informed that it was not allowed to use any forceful
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means. However, if a woman did not want to live with her husband without any valid reason,
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she would lose her right on alimentation by him.16 This interpretation of the law had also been
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supported by Muslim religious leaders in Bosnia and Herzegovina. Thus, the reis-ul-ulema,
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which is the highest religious authority for the Muslims in Bosnia installed by the Habsburg
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administration in 1882, issued already in August 1883 a fatwa, stating that Sharia courts did not
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have any right to use forceful means in order to return wives to their husbands.17 Nevertheless,
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according to the Regulation on the Order and Competence of Sharia courts from 1883, which
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provided the legal basis for the operation of the Sharia courts, kadis had the option of adding
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an enforcement clause to their judgement. The subsequent enforcement would, however, then
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be executed by the civil courts.18 This created further confusion since some of the abandoned

husbands also turned to the civil courts, requesting them to enforce the judgement of the Sharia

court. Thus, in November 1892, Muhamed Efendić went to the civil court in Brčko and

demanded that it should enforce a Sharia court judgement, according to which his wife Aziza

15
See Younis, Razvjenčanja, pp. 425-426.
16
ABiH, VŠS, box 47, E 1887/20: Glede prisilnih sredstava kod zajedničkog prebivanja supruga.
17
Directive by the Reis-ul-ulema from 29 August 1883, No. 52, cited in ABiH, VŠS, box 18, B 1891/3: Mejrema
Kamber protiv supruga Omera Bašića zbog prisile za zajednički život, Sanski Most.
18
See Verordnung über die Organisation und den Wirkungskreis der Scheriatsgerichte.
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had to be returned “with the threat of the consequences of the Sharia law”. The civil court in

Brčko then turned to the Provincial Government for an instruction on how to proceed in this

case. The Provincial Government subsequently explained that such matters could not be handed

over to the civil courts, as the code of civil procedure could not be applied in matrimonial

affairs. It further outlined that no forceful means could be used in the present case since the

Habsburg administration had also confirmed already in 1881 the ban on physical punishment

and prison sentences for qadis.19 Instead, women like Aziza who did not return to their husbands

could be declared as našiza – which can be translated as “disobedient” woman. Thereby, such
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women lost their right on alimentation by the husband. Furthermore, the Provincial Government
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added that in case of adultery, the husband should be instructed to file a suit at the criminal
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court, which would then conduct a criminal trial.20

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Although the fact that “runaway” women lost their alimentation put them in an
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economically unfavorable situation, the missing enforcement powers on behalf of the Sharia
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courts created some loopholes for “runaway” wives, as also the numerous court cases on this
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topic indicate.21 As will be outlined below, this in turn caused several kadis to ask for an
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authorization to impose penalties such as fines and prison sentences, especially since several of
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these “runaway” women would eventually try to remarry or live in concubinage with another
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man. This happened when Fata Beganović had left her husband Osman Ikanović and started to
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cohabitate with Bilal Hodžić. The unmarried couple apparently tried to legalize their liaison,

19
The ban has been imposed already in 1856 under Ottoman rule. See 132. Circularerlass der Landesregierung für
Bosnien und die Hercegovina vom 2. Mai 1881, Zahl 2050, betreffend das Strafbefugniss der Scheriatsrichter und
der Gemeindevorsteher aus Anlass von Uebertretungen der Religionsvorschriften (1881). In: Sammlung der für
Bosnien und die Hercegovina erlassenen Gesetze, Verordnungen und Normalweisungen. II. Band.
Justizverwaltung. Wien: K. u. k. Hof- und Staatsdruckerei, pp. 342–343.
20
104.789/III. ex. 1892. Otpis zemaljske vlade od 4. februara 1893. na okružnu oblast u Dol. Tuzli. In: Zbirka
naredaba za šeriatske sudove u Bosni i Hercegovini. 1878-1900. Sarajevo: Zemaljska vlada i Vrhovni sud za Bosnu
i Hercegovinu, pp. 162–164.
On the divorce issue of women and the confusions around the enforcement of judgements around “runaway”
women in Habsburg Bosnia and Herzegovina, see also Younis, Razvjenčanja.
21
See ABiH, VŠS, Inventar: Vrhovni šerijatski sud za BiH pri Vrhovnom Sudu za BiH, Sarajevo 1879-1946, I,
pp. 25−98.
7
and Bilal handed in a suit for Fata᾽s divorce from Osman in November 1907. As this did not

show any results and the couple continued to cohabitate, Fata Beganović filed another suit for

divorce of her marriage with Osman Ikanović in order to marry Bilal Hodžić in February 1910.

It seems that at this time, there have been already some protests against the couple living in

concubinage, as two persons from the district of Bihać had filed a complaint against the

illegitimate relationship with the district vakuf-mearif committee (kotarsko vakuf-mearifsko

povjerenstvo; committee for pious funds and education). We can assume that this protest had

been triggered, amongst others, by the fact that Fata and Bilal meanwhile also had an
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illegitimate child. The appeals were forwarded to the Supreme Sharia court, which advised the
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local district Sharia court to encourage Osman Ikanović to file a suit at the criminal court.
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Namely, married women cohabitating with another man as well as the respective man could be
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punished based on § 456 of the criminal code on adultery with a prison sentence ranging from
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one to six months.22 Although Osman Ikanović filed a suit at the criminal court, neither Fata
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nor Bilal were sentenced. According to a statement by Osman, this was due to the fact that Fata
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could allegedly demonstrate before court that she was living with her father. In any case, the
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legal stalemate was finally solved by the fact that in April 1910 Osman Ikanović agreed to
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divorce from Fata, although it is not known from the archival documents whether Fata and Bilal
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subsequently managed to get officially married.23

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As this case shows, the consent to a divorce by the husband was decisive in finding a

solution for the situation, in which a wife left her husband and was cohabitating with another

man without being married. Thus, a divorce and subsequent remarriage was not possible as long

as the abandoned husband would not agree. Nevertheless, the Supreme Sharia court in general

22
Strafgesetz über Verbrechen und Vergehen (1881). In: Sammlung der für Bosnien und die Hercegovina
erlassenen Gesetze, Verordnungen und Normalweisungen. II. Band. Justizverwaltung. Wien: K. u. k. Hof- und
Staatsdruckerei, pp. 79–162, here p. 160.
23
ABiH, VŠS, box 26, B 1907/39: Hodžić Bilal proti suprugi Fati rođ. Beganović.
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advised in such cases the local Sharia courts to aim at reconciliating the marital couple or at

proceeding a legal divorce.24

Adultery Between Sharia and the Criminal Code

In many cases, however, the woman refused to return to her husband, who in turn

refused to grant a divorce. Hence, many “runaway” wives lived in concubinage with another

man, without being able to divorce from their legal husbands. Even though the criminal code

sanctioned adultery and fornication, and thus also concubinage of married women, in practice

there were several obstacles, which hindered one to separate a couple living in concubinage. In
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general, it has to be mentioned that the Provincial Government refrained from any direct
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interference in such matters. Despite several demands from clerics and religious organizations
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among all confessions to separate unmarried couples that lived in so-called “wild marriages”
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(divlji brakovi), the political authorities were reticent to meet them. In 1891, the Provincial
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Government issued the instruction no. 28.401, which formed the legal foundation for
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proceedings in cases of concubinage. Accordingly, the political authorities viewed concubinage

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as an allowed relationship, but they would interfere only if there was a criminal offence or if
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such a relationship caused public outrage or unrest among the population. Otherwise, the
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regulation of concubinage would lie in the hands of the religious authorities.25 Nevertheless,
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even if concubinage would result in the criminal act of adultery because of a prior marriage,
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several obstacles hindered the political authorities to directly interfere. On the one hand,

measures against the criminal act of adultery, which was covered by § 456 of the criminal code,

could never be taken ex officio, but only at the request of the injured party within a period of

24
See, e.g., ABiH, VŠS, box 17, B 1884/11: Traži se uputstvo pri uredovanju islamskih bračnih poslova, Šerijatski
sud Bihać; ABiH, VŠS, box 70, E 1893/27: O zajedničkom prebivanju i uzdržavanju žene po mužu, Krupa.
25
A similar instruction was issued again in 1908. See Sladović, Eugen (1915): Priručnik zakona i naredaba za
upravnu službu u Bosni i Hercegovini. Sarajevo: Vlastita naklada izdavatelja (Tisak “Bosanske Pošte” u Sarajevo),
p. 114; Grunert, Heiner (2016): Glauben im Hinterland. Die Serbisch-Orthodoxen in der habsburgischen
Herzegowina 1878-1918. Göttingen: Vandenhoeck & Ruprecht (Religiöse Kulturen im Europa der Neuzeit, 8), p.
166; Kasumović, Amila (2018): Konkubinat u Bosni i Hercegovinu na prijelomu 19. i 20. stoljeća. In: Prilozi 47,
pp. 69–90, here pp. 75−76.
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six weeks after having been informed about the adultery of the spouse.26 On the other hand, the

interaction between the Sharia courts and the criminal courts was often inadequate, and the

parties were frequently only insufficiently informed about the necessary steps for initiating a

criminal trial. Apparently, the local kadis did not possess adequate knowledge about the

relevant legal stipulations since it happened several times that the local Sharia courts just

handed over the case to the state prosecutors. However, this was not sufficient, as the Provincial

Government reminded the Supreme Sharia court in a message from October 1897.27 Therefore,

the Supreme Sharia court issued on 30 December 1897 a directive towards all district Sharia
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courts, urging them to inform the court parties about the specific regulations regarding a
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criminal trial on adultery.28

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Even if a criminal trial was conducted and the adulterers were punished, this usually did
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not bring “runaway” women to return to their husbands nor did it solve the legal stalemate
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around concubinage. This was the case when Fatima Ibričević from the small village of Džakule
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near Gračanica had left her husband Mustafa Zahirović in autumn 1907. After staying with her
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father for a few months, she later rejoined her first husband Osman Selimović, with whom she
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had divorced before marrying Mustafa Zahirović. Unable to re-register the liaison, Fatima and
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Osman lived in concubinage. Since Mustafa Zahirović filed at the criminal court a suit against
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Fatima, who was still his official spouse, she was imprisoned for 15 days. Nevertheless, she
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immediately went back to her illegitimate partner Osman after her release. This caused Mustafa

Zahirović to file an appeal at the Supreme Sharia court in February 1909, in which he asked to

authorize the local Sharia court in Gračanica to bring Fatima back to him by coercive means.

The Supreme Sharia court, however, found that it could not do anything in the matter and

advised Mustafa Zahirović to turn again to the political authorities if his wife’s behavior would

26
See Strafgesetz über Verbrechen und Vergehen, p. 160.
27
ABiH, VŠS, B 1896/29, 16.10.1897: Letter from the Provincial Government to the Supreme Sharia court.
28
ABiH, VŠS, box 1, A 1897/6: O primjeni čl. 456 i 457 bh. k. z.
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be considered as an “offensive act” (sablažnjivo djelo).29 Namely, according to the instruction

by the Provincial Government on concubinage from 1891, the political authorities should

theoretically intervene in the case of “a public scandal or turmoil and unrest” (javnu sablazan

ili nemir i uzrujanja) among the population.30

However, the interference by the political authorities and the punishment of the

offenders often did not result in any long-lasting solutions, which can be illustrated with the

following court case: On 21 July 1908, the district Sharia court in Konjic received a telegram

from a certain Alihodža Kerić from the town Kalinovik, stating that Zahir Truka had married
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Fata Ahmetbegović, who had ran away from her husband Derviš Truka almost two years ago
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and who had not divorced from him. This message was immediately forwarded to the district
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office, which then imprisoned Zahir Truka for eight days. Although the couple was further
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cohabitating after Zahir’s release, the district office first refused to undertake further measures,
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as it did not consider to be responsible for that matter. Therefore, the local Sharia court in Konjic
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turned to the Supreme Sharia court, asking for an authorization to punish the illegitimate couple,
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as it feared that otherwise such cases would repeat. The Supreme Sharia court held that the local
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Sharia court should ask the district office as political authority to mediate on the matter and to
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hinder the “spread of immorality”. Upon request by the Sharia court and since Zahir and Fata
ul
at

were still living together, the district office imprisoned Zahir again for another four days in
e!

September 1908. But also this could not bring any solution since the couple was further

cohabitating after Zahir’s release. Therefore, the Supreme Sharia court also asked the Provincial

Government in November 1908 to advise further measures for separating Fata from Zahir. In

29
ABiH, VŠS, box 27, B 1909/6: Zahirović Mustafa protiv supruge Fate Ibričević zbog prisilnog ženinog povratka,
Gračanica.
30
Sladović, Priručnik zakona i naredaba, p. 114.
11
the end, the case could be solved because Derviš Truka, the official husband, was ready to

divorce Fata in December 1908.31

This court case illustrates, furthermore, that cases, in which a “runaway” wife lived in

concubinage with another man, could easily end in a legal stalemate. As shown above, a

criminal court proceeding could not solve the fundamental problem if a husband was not willing

to divorce. In some cases however, the unmarried couple found rather creative strategies to

circumvent the legal prohibitions of living together. In this vein, when Zejna Likić had left her

husband Mušan Berberović in June 1912 and lived since then in concubinage with Ibrahim
D

Čorbić in the village of Tuholj, she was unable to divorce from her husband. Due to a suit on
ra
ft

adultery by her husband at the criminal court, Ibrahim Čorbić was even imprisoned, but the
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le

unmarried couple still continued to live together in concubinage. Although they were still not
as
e

able to marry, the couple found another strategy to prevent a further separation: Zejna bought
do

one half of the house, in which she was living together with Ibrahim Čorbić. As common
no

owners, they were entitled to live together in the same house.32

tc
ite

The inability to effectively prevent concubinage caused in some cases also unrest among
or
ci

the local population; and often local community leaders, such as the imams, muhtars or the
rc
ul

leaders of the local religious community (džematbaša) would intervene and ask for punishment
at
e!

of the unmarried couple.33

Mitigating the “Spread of Immorality”

Since the mid-1890s, local kadis started to increasingly describe concubinage, such as

in general marriages forbidden by the Sharia, as a “spread of immorality”.34 In this vein, kadi

31
ABiH, VŠS, box 26, B 1908/28: Ahmedbegović Fata protiv supruga Derviša Beširovića zbog razvoda braka,
Konjic.
32
ABiH, VŠS, box 30, B 1913/21: Likić Zejna protiv supruga Mušana Berberovića zbog razvoda braka, Kladanj.
33
See, e. g., ABiH, VŠS, box 28, B 1911/5: O preljubu vjenčanih žena; ABiH, VŠS, box 30, B 1913/41:
Rahmanović Osmanaga o preljubu Ajke Džafić, Sarajevo.
34
Previously, several kadis had already asked the Supreme Sharia court on instructions how to proceed in such
cases and whether it would be allowed to use forceful means. However, they rather neutrally described the cases,
without stressing a potential threat to morality. See, e.g., ABiH, VŠS, box 17, B 1884/11: Traži se uputstvo pri
12
Hadžić, who had been serving at the local district Sharia court in Cazin since September 1894,

wrote a complaint to the Provincial Government in July 1895, in which he claimed that there

would exist “among the Mohammedan population a tendency which leads them in their life on

different false paths that are against the faith and morality” (među muhamedanskim pučanstvom

neku struju koja ih u njihovom životu dovađa na razne stranputice koje se ne slaže ni sa vjerom

niti moralom). Namely, it would often happen that girls would leave their husbands and return

to their parents after being married for a while. Then, the parents would soon give the girl for

money or a sheep or a goat to another man. Kadi Hadžić even claimed that some persons would
D

try to make money with such a “trading in women” (pazarivanje žena). Although it is not sure
ra
ft

if these claims truly happened or were just exaggerated, kadi Hadžić wanted to introduce new
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measures in order to force women to return to their husbands. He suggested that the best means
le
as

would be to punish a person who disobeyed a kadi’s decision, Sharia law or “public morality”
e
do

by a disciplinary prison sentence from one day up to one month. He justified this proposal by
no

pointing out that kadis could not implement their decisions due to the lacking enforcing powers;
tc
ite

hence, Sharia court judgements would not be taken serious and “the evil deed spreads further,
or

and again ruining and damaging faith and morality” (to zlo djelo još više širi ito opet samo na
ci
rc

zator i štetu vjere i morala).35 Subsequently, the Provincial Government issued an instruction
ul
at

on how to proceed in cases of fornication and bigamy of a married and legally not divorced
e!

woman. Thereby, it stated that it fully endorsed the well-intentioned proposition of kadi Hadžić,

but that the described problems would already be covered by the existing laws. Namely, these

acts would be punishable under criminal law executed by the criminal courts, wherefore it

would not be necessary to grant any penal power to Sharia courts. Nevertheless, the Provincial

Government indicated that it was the duty of Sharia courts to prevent these developments with

uredovanju islamskih bračnih poslova, Šerijatski sud Bihać; ABiH, VŠS, box 47, E 1887/20: Primjena prisilnih
sredstava u šerijatu povodom zajedničkog življenja supružnika; ABiH, VŠS, box 70, E 1893/27: O zajedničkom
prebivanju i uzdržavanju žene po mužu, Krupa.
35
ABiH, VŠS, box 1, A 1895/8: O nevaljanim ženidbama − o prodaji žena i kćeri − o trgovanju na račun braka.
13
“their whole moral influence and appropriate instructions” as well as to report every criminal

act to the state prosecutors and district court.36 Thus, the Provincial Government clearly kept

the penal competences outside of the scope of Sharia courts, which in their view were competent

for solely moral instructions.

Notwithstanding this directive from the Provincial Government, the pleas for granting

penal powers to Sharia courts did not end. In the end of 1896 and the beginning of 1897, the

Supreme Sharia court was confronted with several reports from local district Sharia courts about

marriages that violated Sharia law, such as marriages without any official permission from the
D
ra

Sharia courts in general as well as marriages concluded during the waiting period (iddet) of the
ft

bride. Therefore, it turned to the Provincial Government in April 1897, stating that it would be
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le

necessary to issue a specific regulation. This directive should authorize Sharia courts to issue
as
e

penalties against people who got illegally married or were involved in the conclusion of such
do

marriages, which would then be executed by the political authorities. On request by the
no
tc

Provincial Government, the Supreme Sharia court elaborated based on a proposal by the ulema-
ite

medžlis37 a draft regulation on this matter in October 1898. This draft regulation intended to
or

tackle the allegedly increasing cases of marriages forbidden by the Sharia, which would spread
ci
rc

immorality. Therefore, everyone who married without any permission from a Sharia court or
ul
at

was involved in such marriages, should be punished by a prison sentence ranging from 24 hours
e!

to 14 days or by a fine ranging from 5 to 50 forint. Such a severe proceeding was justified by

the fact that “marriage is the basis of family, society and the state. Therefore, it is important

for the public order and the private interest that marriage will be preserved in their purity and

that matrimonial prescriptions will be precisely followed.”38 The Supreme Sharia court further

36
Ibid.; 590. šeriat. Naredba vrhovnog šeriatskog suda za Bosnu i Hercegovinu od 30. decembra 1895. In: Zbirka
naredaba za šeriatske sudove u Bosni i Hercegovini. 1878-1900. Sarajevo: Zemaljska vlada i Vrhovni sud za Bosnu
i Hercegovinu, pp. 202–205.
37
This body was administering religious and educational life of the Muslim population in Bosnia and Herzegovina
and was headed by the reis-ul-ulema.
38
ABiH, VŠS, box 20, B 1896-26: O vjenčanju Emina Položana a Fatimom Hervačić, Sarajevo. (O postupanju
šerijatskih sudova protiv osoba, koje se vjenčaju bez dozvole šerijatskih sudova i koje kod takvog vjenčanja
14
referred to the fatwa collection by Çatalcalı Ali Efendi, the 17th century Sheyhülislam renowned

as one of the leading Hanafi jurists of his time, which declared to put the violation of Sharia

prescriptions under tazir,39 that is punishment at the kadi’s discretion such as lashing,

imprisonment or fines. In addition, the kadis argumented that there was an increasing amount

of cases, in which people married not only without a permission, but also violated Sharia

prescriptions and thereby sinned against the public order and morality, which could have a

deteriorating effect on family and inheritance relations. Moreover, they indicated that the Sharia

prescriptions and laws issued by the Ottoman government were insufficient and not executable
D

since a marriage permission had not been exactly prescribed yet. On top of that, the punishment
ra
ft

prescribed could not be executed due to the ban on corporal punishment issued by the Provincial
-P

Government in May 1881, which confirmed an earlier ban already issued in 1856 by the
le
as

Ottoman government.40 The Supreme Sharia court, however, found that this ban would, in fact,
e
do

not forbid prison sentences nor pecuniary penalties, and argued that, contrary to the
no

interpretation in the mentioned decree from 1881 by the Provincial Government, prison
tc
ite

sentences could not be classified as corporal punishment. And at last, since marriages without
or

a permission or against the Sharia prescriptions would clearly be a matter within the jurisdiction
ci
rc

of Sharia courts, Sharia courts should be authorized to execute their judgements, and therefore,
ul
at

to issue sentences.41
e!

However, this regulation drafted by the Supreme Sharia court was never implemented

by the Provincial Government, and Sharia courts were, hence, still not authorized to issue

penalties. The Habsburg administration, which was aware of the increasing demands for a

criminal jurisdiction by Sharia courts, legitimized the limit of the competences of Sharia courts

sudjeluju), here: 30.10.1898, Vrhovni šerijatski sud: Nacrt naredbe o postupanju šer. sudova protiv takvih osoba
koje se vjenčaju bez dozvole šer. sudova i koje kod takvog vjenčanja sudjeluju.
39
Sharia law did not precisely specify tazir punishments. Therefore, the range of this discretionary punishment
could vary significantly. See, e.g., Hallaq, Wael B. (2009): Sharī'a. Theory, Practice, Transformations. Cambridge:
Cambridge University Press, pp. 322−323.
40
See 132. Circularerlass der Landesregierung.
41
See ABiH, VSS, B 1896-26.
15
by the principle of religious equality and in the sense of their “cultural mission”, which should

approach Bosnia to “Western European” standards.42 An anonymously published book on The

Situation of the Mohammedans in Bosnia, whose authorship has been attributed either to

Benjámin Kállay or Lajos Thallóczy – an important historian on Bosnia and a Habsburg official

–,43 stated, therefore, on this issue:

“However, these special courts [i.e. the Sharia courts] have been deprived of

criminal competences, and this is the point on which those who see the existence of

Mohammedanism and the often invoked oriental view endangered put their emphasis.
D
ra

All these objections would be fully justified if a special confessional court would rule
ft

on Catholics and Orthodox. If measuring with equal standards is a Western principle

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and not right, but the right thing to do is to act according to unilateral confessional
as
e

positions, then the Bosnian government has undoubtedly made a mistake in placing
do

criminal law and procedures on a modern basis, taking into account also the acts related
no

to the Mohammedan religion in the determination of punishable acts.”44

tc
ite

Nevertheless, the demands for penal powers of Sharia courts did not disappear. The lack
or
ci

of enforcement powers by Sharia courts was, as outlined above, also mentioned in the petition
rc
ul

signed by Muslim nobles from whole Bosnia and Herzegovina, which was handed over to
at
e!

Benjámin Kállay in December 1900. Thereby, it was demanded that Sharia courts should be

42
The Austro-Hungarian rule in Bosnia and Herzegovina was often legitimized in contemporary discourses as a
“civilizing mission” (or “Kulturmission” in German), which should pacify and modernize the region as well as
bring it closer towards “Western European culture”. See, for instance, Clemens Ruthner, Habsburgs “Dark
Continent”. Postkoloniale Lektüren zur österreichischen Literatur und Kultur im langen 19. Jahrhundert,
Tübingen: Narr Francke Attempto, 2018, 220-223.
43
See Hajdarpasic, Edin. Whose Bosnia? Nationalism and Political Imagination in the Balkans. Ithaca: Cornell
University Press, 2015. 1840-1914, 178, fn. 70.
44
„Allerdings hat man diesen Sondergerichten [d.i. die Schariagerichte] die Strafsachen aus der Hand genommen,
und dies ist der Punkt, auf den jene Gewicht zu legen scheinen, die hiedurch die Wesenheit des Mohammedanismus
und die oft angerufene orientalische Auffassung gefährdet sehen. Alle diese Einwände wären vollkommen
gerechtfertigt, wenn über Katholiken und Orthodoxe ein besonderes confessionelles Gericht urtheilte. Wenn das
Messen mit gleichem Masse ein westlicher Grundsatz und nic h t r ich tig ist, richtig dagegen das Vorgehen nach
confessionellen einseitigen Standpunkten, dann hat die bosnische Regierung ohne Zweifel einen Fehler begangen,
indem sie das Strafrecht und Strafverfahren auf eine moderne Grundlage stellte und bei der Feststellung der
strafwürdigen Handlungen und der Strafen auch die mit der mohammedanischen Religion verknüpften in Betracht
zog.“ – Die Lage der Mohammedaner in Bosnien. Von einem Ungarn (1900). Wien: Adolf Holzhausen, p. 84.
16
authorized to issue fines and prison sentences, which would then be executed by the political

authorities without any revision of the Sharia court judgments.45 As this demand for an

execution power had not been met by the Provincial Government, it was repeated by Muslim

representatives in a meeting with the k.u.k. Finance Minister Stephan Burián taking place in

Budapest in 1907. However, the Austro-Hungarian authorities replied that in practice it had

never happened that Sharia courts judgements had been revised.46 Thus, despite the repeated

claims for an execution power, the Habsburg authorities continued to keep the criminal

jurisdiction strictly separated from Sharia courts.

D

The complaints about the “spread of immorality”, however, continued, and even
ra
ft

increased during the First World War. The impacts of the war situation, such as the mobilization
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of the male population as well as the increasing economic hardship, led to the disruption of
as
e

traditional marriage relations and to an increase of extramarital relations or marriages that did
do

not conform to Sharia law. The authorities, Islamic religious leaders as well as kadis also these
no

developments as an increasing “spread of immorality”. The local people too, as Adnan Jahić
tc
ite

has outlined, turned to the local vakuf commissions and the Mufti offices and complained about
or

different cases of extramarital relationships.47 In addition, beginning from 1916 the local
ci
rc

authorities and Islamic religious leaders started to see even the increasing number of multiple
ul
at

marriages among soldiers as problematic.48 The k.u.k. Muslim chaplain (k.u.k. Militärimam)
e!

Alija Sefić wrote in June 1916 a letter to the Military Command in Mostar, referring to several

complaints among the local population in Herzegovina that more and more Muslim soldiers

would marry several wives due to their dislocations. This practice should, in Sefić’s view, be

prevented not only out of moral, but also due to economic reasons, as it would further

45
Predstavka podnešena Njegovoj Preuzvišenosti ministru Kalaju.
46
Durmišević, Šerijatski sudovi, p. 88.
47
Jahić, Adnan (2015): U raljama “degeneracije i[li] nužde”. Prilog istraživanju muslimanskog ženskog pitanja u
Bosni i Hercegovini pod austrougarskom upravom. In: Historijska traganja 16, pp. 117–156, here pp. 128−129.
48
Polygamy was in Bosnia and Herzegovina under Habsburg rule, however, generally allowed if it complied with
Sharia prescriptions.
17
deteriorate the financial situation of poor families. This complaint led the Provincial

Government to consult the reis-ul-ulema as well as the Supreme Sharia court. Both declared

that such problematic cases of polygamy would be rare, but the Provincial Government should

still issue stronger measures to fight them. On this occasion, both institutions called attention

to the alleged problem of concubinage, whereby the Supreme Sharia court demanded a specific

directive for the fight against concubinage, which would order the district courts to execute

Sharia court judgements. This demand was justified by the statement that Sharia courts could

not hinder such “predicaments” with their “moral influence”. After several correspondence, a
D

reference by the Supreme Sharia court to an Ottoman law, which apparently allowed Sharia
ra
ft

courts to impose penalties, seemed to have convinced the Provincial Government to initiate
-P

further steps. Thus, it ordered the Supreme Sharia court elaborate a draft regulation, according
le
as

to which persons who solemnized marriage outside the Sharia court could be punished. On 24
e
do

September 1917, the Supreme Sharia court drafted such a regulation, which envisaged prison
no

sentences ranging from 8 up to 30 days or fines ranging from 50 to 500 crowns for persons who
tc
ite

solemnized marriage by circumventing the Sharia court. These sentences would be issued by
or

the first-level Sharia court and executed by the local district court.49 However, this draft has
ci
rc

never been enacted. Instead, the Provincial Government had already in January 1917 issued the
ul
at

directive no. 411 on the “control of immorality” and the unlawful re-marriage of “reservists’
e!

women”: Accordingly, the authorities should separate unlawfully married couples by force and

punish the men who did not go “into battle against the enemy”.50 Nevertheless, this directive

did not bring any effective solution, as kadi Bukvica from Bugojno complained in a letter

directed toward the ulema-medžlis in May 1918. Lamenting about the further “spread of

immorality” due to the wartime, Bukvica described the current developments as an “illness”;

49
ABiH, VŠS, box 2, A 1916/6: O neurednostima pri sklapanju braka muslimanskih vojnih lica.
This archive file also contains the file with the original signature “B 1916/12”.
50
See Jahić, U raljama “degeneracije i[li] nužde”, pp. 130−135.
18
and just as a “contaminated body” would be healed and operated, it would, in his words, be

necessary to take measures to stop this “spread of immorality”. In his view, the directive no.

411 from 11 January 1917 was not effective due to the lack of its implementation, and due to

the fact the criminal trials on adultery were still in the hands of the criminal courts. Therefore,

Bukvica demanded that Sharia courts should be authorized to issue and execute punishments.

To confirm this claim, he referred to § 140 of the Autonomy Statute from 1909, according to

which Sharia courts had to implement the provisions laid out in a murasela, a written religious

decree issued by the reis-ul-ulema. In this vein, the reis-ul-ulema had given on 21 February
D

1917 a murasela based on the Provincial Government’s directive no. 411 on the mitigation of
ra
ft

“immorality”. And kadi Bukvica interpreted this murasela in the sense that all issues among
-P

the “Islamic people” would fall under the scope of Sharia courts.51 The court documents do not
le
as

reveal if any further steps had been taken, but from other sources we know that the Sharia courts
e
do

were still not granted any criminal jurisdiction under Habsburg administration. Thus, cases on
no

adultery had to be further regulated by criminal courts,52 which meant that Sharia courts were
tc
ite

left without enforcement powers, but their moral influence. In addition, the fundamental legal
or

problematics around the issue of “runaway” wives, mainly the very limited divorce
ci
rc

opportunities for women, was yet left untouched in these debates and correspondence between
ul
at

local kadis, the Habsburg authorities and the Islamic religious institutions.
e!

Conclusion

After the Habsburg Occupation of Bosnia and Herzegovina in 1878, the Sharia court

system was integrated into the newly established Austro-Hungarian administration. The

application of Islamic law, which generally inhibited different rights and duties for women and

men, however made gendered administrative practices visible. Women had, according to

Islamic law, only very limited divorce opportunities, which made them to abandon their

51
ABiH, VŠS, box 32, B 1918/32: O moralnom ponašanju vojničkih žena u kotaru Bugojnu, Bugojno
52
See, e.g., Sladović, Islamsko pravo, p. 60.
19
husbands without any official divorce. This posed a challenge for the jurisdiction of Sharia

courts under Habsburg administration: The limited competences of Sharia courts hindered them

to apply forceful means to return such “runaway” wives to their abandoned husbands. While

this lack of enforcement powers on behalf of Sharia courts granted these wives certain

loopholes, the missing divorce opportunities still put them in a difficult situation. The loss of

the alimentation could bring them not only in an economically unfavorable situation, but

“runaway” wives often faced the obstacle of not being able to legally remarry if they could not

divorce form their abandoned husband. Thus, a non-divorced woman, cohabitating with another
D

man than her husband, could be put on trial due to the criminal offence of adultery, but only at
ra
ft

the criminal court. Thereby, the Habsburg administration strictly separated the criminal
-P

jurisdiction from the Sharia courts, which they legitimated with the argument of ”modernizing”
le
as

the criminal law system and of granting equality between the different confessional groups in
e
do

Bosnia.
no
tc

The local kadis, however, saw these developments and the lack of powers to intervene
ite

as a serious problem. They generally referred to concubinage and unlawful marriages as a threat
or

to the traditional Muslim values and family life, and thus as a “spread of immorality”, which
ci
rc

had to be prevented. Therefore, they demanded the Provincial Government to grant Sharia
ul
at

courts with penal powers, so that they could punish women who unlawfully left their husbands
e!

without any divorce or in general persons who unlawfully cohabitated or solemnized illegal

marriages. These demands were also supported by general Muslim religious leaders or Muslim

nobles, as the petition handed over to Benjámin Kállay in 1900 demonstrates. However, these

demands, which even increased during the First World War due to the impacts of mobilization

of the male population and the economic hardships, were not fulfilled by the Provincial

Government, which persisted on the strict separation of competences between the Sharia and

the criminal courts. Hence, the Austro-Hungarian authorities left Sharia courts merely their

20
“moral influence” in tackling divorce and marriage problematics, while punishment should lie

in the hands of the criminal and political authorities. The fundamental legal hurdles, such as the

restricted divorce opportunities for women, were, however, ignored.

D
ra
ft
-P
le
as
e
do
no
tc
ite
or
ci
rc
ul
at
e!

21