Translating Mahr into Secular Categories: Turkish Civil Law and the Legal Characterization of an Islamic Institution

The Turkish Civil Code of 1926, received from Switzerland, established a secular family law resting on numerus clausus and a broadly mandatory structure; yet mahr, an institution of Islamic family law, has persisted in social practice and, since the binding unification-of-case-law decision of the Court of Cassation of 2 December 1959, has been characterized as a donation contract governed by the law of obligations. This article analyzes that characterization doctrinally, distinguishing whether mahr is agreed without a civil marriage, before it, or at or after it, and testing it against Turkish statutory law and reported case law, with comparative reference to German, Swiss, Italian, English, Canadian, United States and New Zealand practice. The analysis keeps three levels of material distinct: classical Ḥanafī doctrine and its Qurʾānic basis, the later positivization of mahr in the codes of Muslim-majority states, and its contemporary reconstruction in scholarship and in Turkish case law. Functional resemblance across these levels is not taken for identity, and the central claim is that Turkish law has taken it for identity. The donation characterization proves internally inconsistent: it misdescribes the parties’ concurring intentions; imposes form requirements unknown to Islamic law; exposes the wife to revocation and restitution; and distorts the concepts of divorce and consummation. In matrimonial property, damages, poverty alimony and subject-matter jurisdiction, the outcomes follow the premise of gratuitousness rather than the structure of mahr, and fall out erratically, sometimes to the wife’s advantage and sometimes against her. So long as the existing secular regime is maintained, mahr is better treated as an imperfect (natural) obligation under Article 78(2) of the Turkish Code of Obligations; the binding force of the 1959 decision, confined to a question of transitional law, does not preclude this reinterpretation.