Missing person (mafqud)

A missing person (mafqud) is, in the lexical sense, one who is lost or gone; in the technical sense, one absent whose place, life and death are unknown and whose news has ceased. The entry covers his wife, property, bequests and inheritance, management of his affairs, and the end of his disappearance; this part of the entry is partial. ^{1 2}

The Hanafis and Shafi'is recognise one kind. The Malikis distinguish the missing in Muslim lands, in enemy lands, in battle between Muslims and unbelievers, and in battle among Muslims. The Hanbalis distinguish one whose absence is presumed safe from one whose absence is presumed fatal, such as a soldier lost in battle. ^{1 2}

Disappearance does not dissolve the marriage: the wife stays married to him, is owed maintenance by agreement, and divorce, zihar and oaths by him still apply, and they inherit each other while the disappearance continues. On how long she waits, Ali held she stays married until he dies or divorces her, a view of the Hanafis and of al-Shafi'i in his later opinion. Umar held that she waits four years, then observes the four-month-and-ten-day waiting period of widowhood, after which she may remarry; Uthman, Ibn Umar and Ibn Abbas agree. ²

The Malikis hold that in Muslim lands the wife waits four years and then observes the widowhood period. For one absent in enemy lands she may not remarry until his death is proven or he reaches an age beyond which he would not live, set at seventy by Malik and his circle. The Hanbalis differ on one whose absence is presumed safe: the stronger and school view is that the marriage is not dissolved until death is proven. For one whose absence is presumed fatal she waits four years and then observes widowhood. ³

Most who hold a waiting period count it from the time the matter is brought before the judge, a view ascribed to Umar, Ata and Qatada and the Maliki school; others count from the despair of finding him after inquiry, or from the day of absence. Some require her to be divorced by his guardian. After the waiting period she observes widowhood without needing a ruling from a judge, in the view of the Malikis and Hanbalis. ^{3 4}

A judge's ruling separating the couple takes effect outwardly but not inwardly, according to the sounder Shafi'i view; the Hanbalis hold it takes effect both outwardly and inwardly. A woman who marries again before the lawful period has passed has a void marriage. The Hanafis do not allow a judge to rule on a claim of marriage against the absent man on the strength of evidence, unlike the Malikis. ^{4 5}

Disappearance affects his existing property, what he acquires by bequest or inheritance, and how his property is managed. The Hanafis forbid the judge to sell his real estate or goods that do not spoil quickly; quick-spoiling goods such as fruit are sold and their price kept. The Malikis allow sale when a judgment of debt or a claim has been passed against him. ⁵

His wife's maintenance is owed from his property, by agreement of the jurists, and his poor children and parents also are maintained from it in most schools. Where he has no property the schools differ on whether the wife may borrow and spend, or whether a judge orders maintenance. Maintenance stops when his death is proven or when he separates from her. ^{6 7}

The Hanafis hold a bequest to the missing man in suspense until his state is known: if he proves alive before the death of his peers he receives it; if he is judged dead the bequest returns to the testator's heirs. He is treated as alive as regards his property, so no one inherits from him, and his share of an estate is held in suspense until the matter is clear. If he is proven to have died after the testator, he inherits; if before, or the period passes without news, the suspended share returns to the testator's heirs. The stronger Hanbali view counts it as his property divided among his heirs. ^{7 8}

It ends in one of three ways: the missing man returns home; his death is proven before a judge; or he is judged dead after a period of absence or on reaching an age beyond which he would not live. The jurists agree on return and on proven death, but differ on the judgement. The Hanafis hold, in the apparent view, that he is judged dead when none of his contemporaries remains in his town, and they set that age at 120, 100, 90 or 70 years, with some leaving the matter to the ruler. The sounder Shafi'i view leaves the age to the ruler's judgment. ^{9 10 11}

When the period is over his inheritance is divided among the heirs alive on the day he is judged dead, as Umar and Uthman ruled, the sounder Hanbali view. Some Hanbalis divide only after the widow's waiting period, if death is more likely. His wife observes the widowhood period from the day of the division. ^{11 12}

The jurists disagree on whether the judgement creates a new status or merely declares one. If it creates it, the widow cannot begin widowhood or remarry before it; and the estate is divided only among heirs alive at its date. If it declares, her waiting period runs from the end of the period and inheritance is divided among heirs alive then. ¹²

If he returns before she has remarried, the Hanafis and, in the well-known view, the Malikis hold she is still his wife. If she has remarried, the Malikis have two views; Ibn al-Qasim and Ashhab hold the stronger is that he has no claim on her. The Shafi'is have two views in the old opinion, and in the new one her second marriage is void and she returns to him after her waiting period. The Hanbalis hold that if the second husband has not consummated the marriage, she is the first husband's wife; if he has, the first husband may choose between taking her and taking her dower. ^{13 14}

The Hanafis hold that he may not claim from his wife and children what they spent with the judge's leave, but he may take what remains in the heirs' hands, and they must pay for anything they sold. The Malikis and Shafi'is hold he may recover his whole estate even after division. The Hanbalis hold he takes the property that still exists; for what has been lost, the heirs are liable in the sounder view. ¹⁴