(navigation image)
Home American Libraries | Canadian Libraries | Universal Library | Community Texts | Project Gutenberg | Children's Library | Biodiversity Heritage Library | Additional Collections
Search: Advanced Search
Anonymous User (login or join us)
Upload
See other formats

Full text of "The Hedaya Or Guide"

THE BOOK WAS 
DRENCHED 



CO >; DO 

8]<OU 166244 g 



^ DO 



THE IIED AYA 

OR GUIDE: 

A 

COMMENTARY 

ON THE 

MUSSULMAN LAWS, 



Translated by order of the Governor-General and Council of Bengal, 

BY 
CHARLES HAMILTON 



BY 

STANDISH GROVE GRADY 

BARRISTER-AT-LAW I RECORDER OF GRAVESEND J 

Reader on Hindu, Mahommedan and Indian Laws to the Inns of Court ; Author o/"Th 

Hindu Law of Inheritance*;" and of "The Mahommedan Laws of Inheritance and 

Contract ;" Editor of "The Institues of Hindu Law, or the Ordinances of 

Menu;" Author of "The Law of Fixtures and Dilapidations t 

Ecclesiastical and Lay ;" and Joint Author of " The Law and 

Practice of the Crown Side of the Court of Queen's Bench." 



Premier Book House 

4/;> Katchery Road-LAHORE. 



PUBLISHER'S NOTE 

This is a word-to-word, line-to-line and page-to-page exact 
reproduction of the second edition of the mon-u-mental work 
"HEDAYA". This has been intentionally done for the 
convenience of the readers, so that they may locate references 
and citations of this work made in other books. 

It is hoped that the publication of this treasure of Islamic 
Jurispudence which remained out of print for more than half 
a century will be greatly appreciated. 

LAHORE, 
January 1, 1957. 



Second Edition : 1957 
Reprint : 1963 



Published by Sh. Muhammad Khalil B.A., LL.B., for Prmie%Boofe House 
PRINTED AT THE UNIT PRINTING PRESS 

LAHORE 



DEDICATION OF THE ENGLISH TRANSLATION. 



TO WARREN HASTINGS, ESQ., 

LATE GOVERNOR-GENERAL OF BENGAL, ETC. 

SIR, AFTER the labour of several years, I am at last enabled to 
present you with a translation of the HEDAYA. 

To you, SIR, I feel it incumbent on me to inscribe a work originally 
projected by yourself, and for some time carried on under your imme- 
diate patronage. However humble the translator's abilities, and 
however imperfect the execution of these volumes may be, yet the 
design itself does honour to the wisdom and benevolence by which it 
was suggested ; and if I might be allowed to express a hope upon the 
subject, it is, that its future beneficial effects, in facilitating, the 
administration of Justice throughout our Asiatic territories, and uniting 
us still more closely with. Our Mussulman subjects, may reflect some 
additional lustre on your Administration. I have the honour to be, 
with the utmost respect, and the most lively gratitude and esteem. 

Sir, 

Your most obedient, 
And most "humble Servant, 

CHARLES HAMILTION. 



ADVERTISEMENT TO THE SECOND EDITION. 



IN further pursuance of the design to which I alluded in my Preface to 
the Third Edition of Menu's Institutes, I now present to the profession 
the Second Edition of the HEDAYA. As this work has been made a 
text-book by the Council of Legal Education, for the examination of 
the students of the Inns of Court, who are qualifying themselves for 
call to the English Bar, with a view of practising in India ; as the 
First Edition, by Mr. Hamilton, has been some time out of print ; its 
bulk (four quarto volumes) is not calculated to assist reference to its 
pages ; and its price had increased in proportion to the difficulty of 
obtaining it, I felt it a duty to publish a new Edition, in order to bring 
it somewhat more within the reach of the students, not only with 
reference to its size, but its cost. I have accordingly, therefore, pre- 
pared this Edition for those enterprising Publishers, Messrs. W. H. 
Allen & Co. A large portion of the work having become obsolete, in 
consequence of the abolition of slavery, and from other causes, I have 
expunged the Books containing those portions from the present Edition, 
they being more interesting to the antiquarian (who can consult the 
First Edition) than useful to the student or practitioner, and their 
insertion would not only have increased the bulk of the volume, but 
its expense also. I have, however retained in the Introductory 
Discourse" the translators'! epitome of those books from which the 
object and scope of the obsolete law may be learned. Where portions 
of the expunged subjects have been incidentally mixed up with 
others, I have been constrained to retain such portions lest the con- 
text might, by their omissions, be involved in obscurity. The second 
edition is now comprised in one volume, printed in double columns, 
and in smaller type than the original, with a -view of comprising it 
within that compass, but, as the type is cleai:, it is conceived that no 
disadvantage will result from this. Wherever any subject is omitted, 
I have inserted a note, expressing my reasons for expunging it. A 
large portion of the original translation had been printed in Italic 
letters. For the sake of uniformity and clearness, this plan has not 
been adopted in the present Edition. I have added a very copious 
Index, which will facilitate reference to the context ; and I should 
have embodied in foot-notes, reference to the cases that have been 
decided upon the various subjects of which the work treats, but that I 
have already done so in that portion of my work on "the Mahommedan 
Law of Inheritance and Contract," in which the same subjects are 
discussed, and where those cases will be found collected. 

Although the present Edition has been published with a view oj 
assisting the student to prosecute his studies, yet the hope is enter- 
tained that the Judge, as well as the Practitioner, will find it useful, 
particulary in those provinces where the Mahommedan law demands 
a great portion of the attention of the judicial, as well a%that of the 
practitioner. It is hoped, also, that it may be found useful In pro 
moting th study of the law in the several Universities in India, i 
being advisable to assimilate the curriculum in both countries as muci 
is possible. 

2, Plowden tsuildtngs, Temple, STANDISH GROVE GRAFT* 

April, 1870. 



Contents 



PAGE 

Introductory address, by the composer of 
the Persian version of the Hcdaya x 

BOOK I 

OF Z A K A T 

Chap. I. Introductory , 

Chap. II. Of Zakat upon Sawayeem ; that 

it, herds and fiocki . ' 

Sect. 1. Of the Zakat of camels, &c. 
Sect. 2. Of the Zakat of horned cattle . J 
Sect. 3. Of the Zakat of goats . . J 

Sect. 4. Of the Zakat of horses . " 

Sect. 5. Of the Zakat of kids, calves, and 

camels colts 

Chap. III. Of Zakat from personal effects . 
Sect. J. Of the Zakat of silver 
Sect. 2. Of the Zakat of gold 
Sect. 3. Of the Zakat of personal or chattel 

property 
Chap. IV. Of the laws respecting those who 

come before the collector 
Chap. V. Of mines and buried treasures . 
Chap. VI Of Zakat upon the fruits of the 

earth > . 

Chap. VII. Of the disbursement of 7akat, 
and of the persons "to % whose 
use it is to be applied % 
Chapt. VIII. Of Sadka-Fittir 
Sect. I. Of the measure of Sadka-Fittir, 
and of the time of its obliga- 
tion and discharge 

BOOK II 



19 



OF NIKKAH OR MARRIAGE 

Chap. I. Introductory 
Sect. 1. Of the prohibited degrees; that is 
to say, of women whom at is 
lawful to marry, and of those 
with whom marriage is unlaw- 
ful 

Chap. II Of Guardianship and equality . 
Sect. Of Kafat, or equality 
Sect. Of a power of agency to contract 

marriage 

Chap. III. Of the Mihr, or dower . 
Sect. Concern^ the Dower in the mar- 

riages of infidels 

Chap, IV. Of the marriage of slaves 
Chap. V. Of the marriage of infidels 
Chap. VL Of Kissm or partition 



BOOK III, 

OF RI2ZA OR FOSTERAGE. 
BOOK IV. 



PAGE 



67 



OF TALAK OR DIVORG1. 

Chap, I. Of th* Talak-al-Sonna, or regular 

divorce . .72 

Sect. Miscellaneous . . ,^75 

Chap. II. Of the execution of divorce . 76 
Sect. Of divorce with a reference to time . 78 
Sect. Miscellaneous ^ . 78 

Sect. Of divorce by comparison, in d the 

several descriptions of it . 81 

Sect. Of divorce before cohabitation . 83 
Chap. III. Of delegation of divorce . 87 

Sect. I. Of Ikhtiyar, or option . . 87 
Sect. 2. Of Amir-ba-Yed, or liberty . 89 
Sect. 3. Of Masheeat, or will . . 91 

Chap. IV. Of divorce by Yameen, or con- 

* ditional vow . . 94 

Sect. Of Istisna ; that is, reservation or 

exception . . 99 

Chap. V. Of the divorce of the sick . . 99 
Chap. VI. Of Rijaat, or returning to a di- 
vorced wife . . 103 
Sect. Of Circumstances which render a 
divorced wife lawful to her 
husband . . 107 
Chap. VII. Of Aila . . 109 
Chap. VIII. OfKhoola . - 112 
Chap. IX.OfZihar . . 117 
Sect. Of Expiation . . 119 
Chap. X. Of Loan, or imprecation . . 123 
Chap. XI. Of impotence . . 126 
Chap. XII Of the edit . . 128 
Sect. Of Hidad, or mourning . . 132 
Chap. XIII. Of the establishment of pa- 
rentage 134 
Chap. XIV. Of Hizanit, or Ihe care of 

infant children . . 138 

2 Sect. Concerning ijie mother's powtr of 

3 removal . . 139 
Chap. XV. Of Nifka, or maintenance . 140 

Sect. 1. Of the Nifka of the wife . 140 

Sect. 1. Of accommodations to a wife ,143 
44 Sect. 3. Of alimony to a divorced wift, 9 

m 1 A C 

&C. . * 145 

57 Sect. 4. Of the fc maintenace of <%hildten +. I4f 

58 Sect. 5. Of the maintenonce of parents, 

63 &c . H' 

66 Sect. 6. Of the maintenance of slaves I4 lj 



CONTENTS 



PAGE 

Book V. 

OF ITTAK OR THE MANUMISSION OF SLAVES. 150 



150 



151 
15 



BOOK VI. 

OF EIMAN OR VOWS. 

Chap. I. Introductory 

Chap. II. Of what constitues an oathor 
vow, and what does not con- 
stitute it 

Chap. III. Of Kafara or expiation . 

Chap. IV. Of vows with respect to entrance 
into or residence in a parti- 
cular place . .155 
V. Of vows respecting various actions; 
such as coming, going^ riding, 
and so forth . . 
VI Of vows with respect to eating or 
drinking . . 15b 

VII. Of vows with respect to speaking 
and conversing . 163 

Concerning a reference to time in 
vows 

VIII. Of vows in manumission and 
divorce . 

IX. Of vows in buying, selling, mar- 

riage, and so forth 

X. Of vows respecting pilgrimage, 

fasting, and prayer . IV 

XI. Of vows respecting clothing and 
ornaments 



Chap. 

Chap 
Chap. 
Sect. 
Chap. 
Chap. 
Chap. 
Chap, 
Chap. 
Chap. 
Chap 



Chap. 
Sect. 

Chap. 



16. 



16 



17 



17 



Chap. 
Chap. 
Chap, 
Chap. 



XL. Of vows concerning striking, 
killing, and so forth 

XIII. Of vows respecting the payment 
of money 17 

XIV. Of miscellaneous cases . . 17 

BOOK VII. 

OF HOODOOD OR PUNISHMENTS. 

I. Of Zinna, or whoredom . . 17 
Of the manner of punishment, and 

the infliction thereof . . 17 

II. Of the carnal conjunction which 

ocasions punishment, and of 
that which does not occasion it 18 

III. Of evidence to whoredom, and of 
retraction therefrom . . 18 

IV. Of Hidd Shirrub, or the punis- 
ment for drinking wine . 19 

V. Of Hidd Kazaf, or the punishment 

for slander . 1* 

VI. Of Tazeer, or chastisement . 20 



BOOK VIII. 

OF 8ARAKA OR LARCfNY. 
BOOK IX. 



20 



20 



AL SEYIR, OR THE INSTITUTES, 

BOOK X. 

OP THE LAWRESPECTINQ LAKEETS, OR FOUND- 
LINGS. 20 

BOOK XL 

OF LOOKTAS OR TROVE. 2( 



PAGE 



BOOK XII. 
OF IBBAK OR THE ABSCONDING OF SLAVES. 213 

BOOK XIII. 
OF MAFKOODS OR MISSING PERSONS. 213 

BOOK XIV. 

OF SHIRKAT OR PARTNERSHIP, 

Sect. Of invalid partnerships 
Sect. Miscellaneous 

BOOK XV. 

OF WAKF OR APPROPRIATIONS, 

Sect. Concerning mosques, &c. 239 

BOOK XVI. 

OF SALE. 

3hap. I. Introductory . . 2U 

Chap. II. Of optional conditions . . 248 
Oap. III. Of option of insepection . . 255 
Chap. IV. Of option from defect . . 258 
Chap. V, Of invalid, null and abominable 

sales . . 266 

Sect. Of the laws of invalid sales . .275 
Sect. Of sales and purchases which are 

abominable . . 278 

Chap. VI. Of Akala, or the dissolution of 

sale . . 280 

Chap. VII Of Moorabihat, and Tawleeat, 
that is, sales of profit and of 
friendship . . 281 

Sect. Miscellaneous . . 286 

Chap. VIII* Of Ribba or usury . . 289 
Chap. IX. Of rights and appendages . . 29^ 
Chap. X. Of claim of right (preferred by 

others to the subject of a sale) 294- 
Sect. Of Fazoolee Beea, or the sale of the 
property of another without his 
consent . . 296 

Chap. XI. Of Sillim sales . . 299 

Sect Miscellanous cases . . 309 

BOOK XVII. 

OF SIRF SALE. 

jrfOOK XVIII. 
OF KAFALIT OR BAIL. 

Chap. I. Introductory . .318 

Sect. Of Zamins or guarantees . . 327 
Chap. II. Of bail in which two are concerned 329 
Chap. III. Of bail by freemen, in behalf of 
slaves, and by slaves in behalf 
of freemen . . 330 

BOOK XIX. 

OF HAWALIT, OR THE TRANSFER OF DEBTS. 332 

BOOK XX. 
OP THE DUTIES OF THE KAZEE. 

Chap. I Introductory 



Sect. Of imprisonment 



334 

338 



CONTENTS 



PAGE 

Chap. II. Of letters from one Kazee to an- 
other 34 
Sect. Miscellaneous . 3* 
Chap. III. Of arbitration . . 343 
Sect. Miscellaneous cases relative to ju- 
dicial decisions >44 
Chap. IV. Of the decrees of a Kazee relative 

to inheritance 347 

Sect. Miscellaneous 352 



Chap. 

Sect. 

Chap. 

Chap. 

Chap. 

Chap. 

Sect. 



BOOK XXI. 

OP SHAHADIT OR EVIDENCE. 

I. Introductory 

Miscellaneous t . 357 

II. Of the acceptance and rejection of 

evidence 359 

III. Of the disagreement of witnesses 

in their testimony 

IV.Ofevidence relative toinheritance 368 
V, Of the attestation of evidence . 36 
Concerning the stigmatizing of false 

witnesses 372 



BOOK XXII. 

OR RETRACTATIONS OP EVIDENCE 372 

BOOK XXIII. 

OF AGENCY 

Chap. I. Introductory . 37< 

Chap. II. Of agency for purchase and sale 37 ( 
Sect. 1. Of agency for purchase . . 37 
Sect. 2. Of the appointment of agents, by 
slaves, for the purpose of pur- 
chasing their own jfersons in 
their own behalf . 38 



Sect. 3. Of agency of sale . 38 

Sect. 4. Miscellaneous cases . 39 

Chap. III. Of the appointment of agents for 



litigation and for seisin . 39 

Chap. IV. Of the dismission of agents 39 

BOOK XXIV. 

OF DAWEE OR CLAIMS. 

Chap. I. Introductory 

Chap. II. Of oaths . . 40 

Sect. Of the manner of swearing, and re- 
quiring an oath . . 40 

Chap. III. Of Tahalif; or the swearing of 
both the plantiff and the de- 
fendant . . 40 
Sect. Of persons w ho are not liable to 

ciajms . .41 

Chap. IV. of things claimed by two plaintiffs 41 
Sect. Of disputes concerning possession . 4;" 

Chap. V. Of claim of percentage . . 42 

BOOK XXV. 

OP IKRAR OR ACKNOWLEDGMENTS. 

Chap. I. Introductory . . 42 

Sect. Concerning acknowledgments with 
respect to Embryos 



PAGK 
lhap. II. Of exceptions; and what is deemed 

equivalent to-exception . . 430 
Chap. III. Of acknowledgments made by sick 

persons . . 436 

Sect. Miscellaneous cases ' . .439 

BOOK XXVI. 

OF SOOLH, OR COMPOSITION 
PROFITS OP STOCK AND LABOUR. 

Chap. I. Introductory . . 441 

Sect. Miscellaneous . . 443 

Chap. II. Of gratuitous or voluntary composi- 
tions ; and of the appointment 
of agentt for composition . 446 
Chap. III. Of compositions of debt . 448 

Sect. Of participated debts . . 450 

Sect. Of Takharij . . 452 

BOOK XXVII. " 

OF MOZARIBAT OR COPARTNERSHIP IN THE ^ 
PROFITS OF STOCK AND LABOUR. 

Chap. I. Introductory . . 454 

Chap. II. Of a manager entering into a con- 
tract of Mozaribat with another 460 
Sect. Miscellaneous . . 463 

Chap. III. Of the dismissal of a manager ; 
and of the division of the pro- 
perty . . 463 
Chap. I\f. Of such acts as may lawfully be 

performed by a manager . . 465 
Sect. Miscellaneous . . 468 

Chap. V. Of disputes between the proprietor 
of the stock and the manager . 470 

BOOK XXVIII. 

OF WIDDA OR DEPOSITS. 471 

BOOK XXIX. 

OF ARREAT OR LOANS. 471 

BOOK XXX. 

OF HIBBA OR GIFTS. 

Chap. I. Introductory . . 482 

Chap. II. Of retractation of gifts . . 485 

Sect. Miscellaneous . . 488 

> Sect. Of Sadka or alms-deed . . 489 

BOOK XXXI. 

t OF IJARA OR HIRE. 

Chap. I. Introductory . . 490 

Chap. II. Of the time when the hire may be 

claimed 491 

Sect. Miscellaneous . $93 

Chap. III. Of things the hire of which i 

unlawful or otherwise ; and of 

disputed hire . i\* 

Chap. IV. Of invalid Hire . .497 

Chap. V, Of the responsibility of a hireling 503 
Chap. VI. Of hire on one of two condition: 505 
Chap. VII, Of the hire of slaves ^ . - 557 
Chap. VIII. Of disputes between the hirer 

and the hireling + . 508 

Chap, IX. Of the dissolution of contracts of 

hire . . 509 

Sect. Miscellaneous cases . . 5)2 



via 



CONTENTS 



BOOK XXXII. 

OF MOKATIBS 

BOOK XXXIII 

OF WILLA 



PAGE 
512 

513 



Sect. Of the Willa Mawalat, or Willa of 

mutual amity . . 517 

BOOK XXXIV. 

OF IKRAH OR COMPULSION. 519 

Sect* Miscellaneous . . 521 

BOOK XXXV, 

OF HIJR OR INHIBITION. 

Chap, I. Introductory , . .524 

Chap. II. Of inhibition from weakness of 

' mind . . 526 

Sect. Of the time of attaining puberty . 529 

Chap. III. Of inhibition on'account or debt 530 

BOOK XXXVI. 

OF MAZOONS OR LICENSED SLAVES 633 

BOOK XXXVII. 

OF GHAZB OR USURPATION. 

Sect. Oi usurped articles altered bracts of 

the usurper . . S37 

Sect. Miscellaneous . , 541 

Soct. Of the usurpation of things which 

are of no value . 544 

BOOK XXXVIII. 

OF SHAFFA. 

Chap. I. Of the persons to whom the right 

of ShafTa apertains . . 548 

Chap. II. Of claims to Shaffa, and of litiga- 
tion concerning it . . 550 
Sect. Of disputes relative to the price . 553 
Sect. Of the articles in lieu of which the 
Shafee may take the Shaffa 
property . , 555 
Sect. Miscellaneous . . 556 
Chap. III. Of the articles concerning which * 
SharTa operates . . 558 
Chap. IV. Of circumstances which invalidate 

the right of SharTa . . 561 

Sect. Miscellaneous ' ', . 563 

Sect. Miscellaneous cases . . 563 

BOOK XXXIX 

OF KISSKfAT OR PARTITION. 

Itap.'!. Introductory L . .566 

'Jhap/II. Of tfrings which are fit objects of 

partition J . 569 

Chap. kill. Of the mode of accomplishing 

partition . . 57! 

Chap. IV. Of pleas of error in partition ; 

and of claims of right in regard 

to it 573 



PAOB 

Sect. Of the laws which prevail in a claim 

of right . . 574 

Chap, V. Of the laws of Mahayat . . 576 

BOOK XL. 

OF MOZAREA OR COMPACTS OF CULTIVATION. 579 

BOOK XLI 

OF MOSAKAT OR COMPACTS OF GARDENING. 5S4 

BOOK XLII. 

OF 2ABBAH OR THE SLAYING OP ANIMALS FOR 

FOOD. 587 

Sect. Of the things which may lawful be 
eaten and of those which may 
not . . 591 

BOOK XLHI, 

OF UZHEEA, OR SACRIFICE 5^2 

BOOK XLIV. 

OF KIRAHEEAT, OR ABOMINATIONS 594 

Sect. 1. Of eating and drinking . . 595 
Sect, 2. Of dress . . 597 

Sect. 3, Of ornaments . . 597 

Sect. 4. Of the commerce of the sexes; 

and of looking at or touching 

nnv person . . 598 

Sect. f Of fstihra, or waiting for the 

purification of women . . 601 
Sect, 6. Of the rifles to be observed in 

sale . . 603 

Sect. 7. Miscellaneous cases , . 60? 

BOOK XLV. 

OF THE CULTIVATION OF WASTE LANDS. 609 

Sect. 1. Of waters . .613 

Sect. 2. Of digging or clearing rivers . 615 
Sect, 3. Of claims of Shirb ; and of dis- 
putes and particular privileges 
with respect to it . 616 



XLVT 

OP PROHIBITED LIQUORS 618 

Sect. Of boiling the juice of grapes . . 623 
BOOK XLVII. 

OF HUNTING. 

Sect. 1 iOf catching game with animals 
of the hunting tribe, such as 
dogs, hawks, &c> . . 623 

Sect. 2- Of shooting game w'th an arrow 627 

BOOK XLVIIL 

Or RAHN OR PAWNS. 

Chap. I. Introductory . 629 

Chap. II. Of things capable of being pawned; 
and of things for which pledges 
may be taken 63& 



CONTENTS 



IX 



PAGE 

SECt. Miscellaneous . . 642 

Chap. HI. Of pledges place J in the hands of 

a trustee . . 644 

Chap. IV. Of the power over pa vns and of 

offences committed by or upon 

them . . 6*7 

Sect. Miscellaneous . . 656 

BOOK XLIX 

OF JANAYAT OR OFFENCES AGAINST THE 

PERSON 659 

BOOK L. 

OF DEE AY AT OR FINES 

Chap. I Introductory m 660 

Chap. H. Of nuisances placed in the high- 
way . . 660 
Sect. Of buildings which are in danger of 

fallinq . . 663 

Chap. IH. Of offences committed by or upon 
animals . . 665 

BOOK LI. 

OF MAWAKIL OR THE LEVYING OF FINKS. 670 

BOOK LII. 

OF WASAYA OR WILLS. 

Chap. I. Of wills that are legal* and wills 
that are laudable ; and of the 
retractation of wills . . 670 



PAGE 

Chap. II. Concerning the bequest of a third 

of the estate . . 676 

Sect. Of the period of making wills . . 684 
Chap HI. Of emancipation upon a deathbed; 
and of wills relative to emanci- 
pation . 685 
Sect. Of bequests for pious purposes . 688 
Chap. IV. Of wills in favour of kinsmen and 

other connexions . , 689 

Chap. V. Of usufructuary wills . . 692 
Chap. VI. Of wills made by Zimmees . 695 
Chap, VII. Of Executors and their powers 697 
Chap. VIII. Of evidence with respect to 

wills . . 703 



BOOK LIII 

OF HERMAPHRODITES. 

Sect. 1. Of who are hermaphrodites ^ 704 
Sect. 2. Of the law respecting equivocal 

hermaphrodites . . 7Q 

CHAPTER THE LAST 



Miscellaneous cases 



. 707 



INTRODUCTORY ADDRESS 

BY THE 

COMPOSERS OF THE PERSIAN VERSION 

PRAISE and glory unbounded is due to that adorable Being, in the 
investigation of whose ways ; through several mazes, the most learned 
theologians are exchausted, and the most contemplative philosophers, 
in the wilderness of research, find the foot of comprehension shackled 
with the fetters of amazement ! Duly to return thanks for his favours 
(which to offer is a duty indispensably incumbent on every existent 
being) is impossible ; and to touch the skirt of his intelligence (which 
exceeds the power of the linger of diligence) by force of reason and 
study, impracticable ! Salutations innumerable are also to be presented 
at the tribunal of HIM who is seated on the elect throne, to follow 
whose infallible institutes is a certain means of attaining the Divine 
favour, and whose world-illuminating Lamp of Law derives its sacred 
light from the morning beams of the Day of Judgment. All honour 
and blessing upon him, and upon his holy family, and his worthy 
COMPANIONS ! Upon the tablets of the hearts of those who adorn the 
exordium of the book of knowledge and wisdom, and upon the minds 
of those who expound the collected mysteries of the creation, it is 
impressed, that, from the day that the delightful region of BENGAL 
was cheered by the rays of Government of the Nawab Governor- 
General, Mr. WARREN HASTINGS, the whole of his wise and prudent 
attention was occupied and directed to this point, that the care and 
protection of the country, and the administration of public affairs, 
should be placed on such a footing, that the community being sheltered 
from the scorching heat of the sun of violence and tyranny, might find 
the gates closed against injustice and oppression ; and that the range 
of sedition in those who deviate from the road of truth might be limited 
and shortened : and since this hope must be fulfilled through the 
influence of the holy LAW t>f the PROPHET, and the injunctions and inhibi- 
tions of the chosen sect, this denizen of the kiqgdorrf of humility and 
solitude, named GHOLAM YEHEE, was therefore instructed and em- 
powered, together with Molla TAJ-ADDEEN, Meer *MOHAMMED HOSSEIN, 
and Molla SHARAEEAT Oor. LA, to translate from the Arabic language into 
the Persian idiom certain treaties upon the LAW, but particularly that 
excellent work the HEDAYA (which, from its great subtlety, and the 
closeness of its style, is a species of miracle), to which, accordingly, 
with their assistance, applying his attention, the Arabic text was, as 
much as it would admit, reduced into a Persian version ; which they 
have entitled the HEDAY A FARSEE [Persian Guide]. hoping that mankind 
may thereby find their wants supplied, and that profit and advantage 
may thencn accrue. 

FROM those whose who travel in this fruitful garden let it not be 
concealed, that where, in the course of their investigation, the word 
Sheikhine [the two Elders] is mentioned, it signifies the two renowned 
Doctors, Imam ABOO HANEEFA, and the most illustrious of his disciples, 
Imam ABOO YOOSAF : where the word 1 irrafine [the two extremes] 
is written, it imports the sublime name of ABOO HANEEFA (on wljpm be 
the peace of GOD) and Imam MOHAMMED, who stands next in rank to 
the two Elders ? and by the term Sahibine [the two disciples] are in- 
tended the two scholars of HANEEFA, upon both of whom be the blessing 
^rGQD ! 

A HOPE is indulged, from the benevolence of those who shall persue 
the following pages, that if in passing over thte valleys and the hills of 
this long journey, it should happen that the foot of meditation has any- 
where slipped from its place, they will not treat it with severity, npr 
expose it to the finger of scorn or reprehension. The guidance is 



PRELIMINARY DISCOURSE, 

BY THE TRANSLATOR. 

VOL. I. 
BOOK I. OF ZAKAT\ 

ZAKAT means the alms imposed by the LAW, in opposition to Sadka 
[charity], which signifies the voluntary contributions of individuals, and 
which is treated of at large under the head of gifts. As ALMS, in our 
application of that word, is always used to denote something purely 
gratuitous, the translator, in treating of those imposed by the Mussul- 
man law, has retained the original term, to which the English language 
does not afford any expression strictly analogous. Some writers have 
confounded Zakat and Sadka under one common meaning. The Arbian 
commentators, however, make an essential difference between them ; 
for the former is merely an indispensable compliance with a legal 
obligation, claiming no merit in futurity ; whereas the latter is as much 
an impulse of the mind as an act of the hand, and is of course entitled 
to its reward. The impost of Zakat originated with MOHAMMED 
himself, who at first employed the revenue arising from it according 
to his discretion, in th% support of his needly adherents ; but 
the objects of it were*afterwards ascertained by various passages in 
the KORAN ; and it is somewhat remarkable that the Prophet parti- 
cularly excluded the members of his own family from any participation 
in it, and this in terms which sufficiently denote the arrogant 
superiority assumed by the tribe of HASHIM.* To compensate, how- 
ever, for this execusion, he admitted them to a fifth share in that 
proportion of the spoil which was alloted to the public treasury. For 
some generations after MOHAMMED this impost was regularly collected, 
and faithfully applied to its appointed purposes. In most Mussulman 
territories it continues to be levied at the present day ; but the original 
object of its disbursement have been long since disregarded, and 
what was intended as a relief to the poor i is now,'* even in the best 
regulated governments, carried to the exchequer of the prince, who 
endeavours to satisfy his conscience by a sort of commutation, in the 
erection of mosques, or the support of a few indigent and idle Fakeer^ 
about his palace. That which commenced in the indigence or rapacity 



of the sovereign, has now acquired a sort of prescriptive ^itority ; 
and the revenue derived from Zakat is universally consjderefo as tne 
right of the state. It has indeed, for several centuries past, ceased to be 
collected upon stationary property, the only tax which at presehL 

* See his declaration upon t^is subject (vol. I.), where the grossness of the meta- 
phors used by him is worthy of remark. 



xii PRELIMINARY DISCOURSE. 

bears the name of Zakat being that imposed on goods imported in the 
way of trade from one country or district into another, and levied 
in the name of a toll. Many of its rules will be found to apply 
peculiarly to ARABIA and SYRIA, the countries in which these laws 
originated, and where flock* and herds have ever formed a chief part 
of the wealth of the inhabitants. Although the laws of Zakat have in a 
great measure been superseded, or become obsolete with respect to their 
original design, yet they are worthy of attention, as incidentally 
involving many of the laws of property in points not immediately 
connected with this subject. Under this head is comprehended the 
Sadka Fittir or alms given to the poor on the festival of breaking Lent; 
because the payment of those is considered as a divine ordinance, and 
the amount (contrary to other descriptions of Sadka) is particulary 
prescribed by the LAW. 

ZAKAT is the only one of the five books upon the Abadat, or 
spiritual law, retained by the English translator. It, is, therefore, 
immediately followed by the Maamilat, or temporal law, commencing 
with MARRIAGE, and ending (properly) with BEQUEST, the last temporal 
act of MAN; though a short supplementary book upon Hermaphrodites 
is added. 

iQx BOOK II. OF MARRIAGE. 
\ 

THE preliminaries to this most important of all contract, as set 
forth in Chap. I, are stated in terms remarkably simple. No provision 
is made for the execution of any written engagement ; no particular form 
of ceremony is prescribed ; but the efficiency of the whole is made to 
depend merely upon the oral declarations of the par ties, before sufficient 
witnesses. In fact, written engagements were not in common use until 
some time after the establishment of Islaanism. A section of this 
chapter is occupied throughout \vith the matfifhonial prohibitions and 
restrictions, with respect to which the Mohammedan and Levitical law 
have a close affinity. The principal of these restrictions are, that a 
man shall not marry his relation within the prohibited degrees ; that 
he shall not have more than four wives at a time ; and that he shall not 
marry, together, two women related to each other within the pro- 
hibited degrees. To the political and speculative inquirer the most 
curious features in this book are, the passages which particularly 
concern WOMEN, as contained in Chap. II. and III. from which it 
appears, that the female sex are, among the Mussulmans, invested with 
many personal rights and independent privileges, such as certainly, in 
some measure, cbmpensate for the various hard conditions to which 
law or custom has subjected the daughters of Islam. These, as they 
are fully discussed in the body of the work, it is needless to 
recapitulate. The most striking of them which occurs under this 
articles is, the liberty allowed to a woman to dispose of herself in 
jnarriage independent of her guardians, and the right of optfon which 
still remains^to one contracted during infancy, after she shall have 
attained to maturity, which the law fixes at a very early age.* A 

woman is also entitled to posses her dower, or marriage settlement, 

< _ 

* See Vol. III. 



PRELIMINARY DISCOURSE. xiii 

as her own exclusive property, which she may dispose of by gift, will, 
or other deed, altogether independent of her husband, or of any claims 
which may lie against his estate. Chapter VI. exhibits a still more 
extraordinary regard, in the Mussulman legislator, for the feelings of 
the sex, upon a point of a very delicate nature, and in which he doubt- 
less consulted the peace of the Haram as much as the dictates of 
abstract equity. Concerning, this, however, we shall leave the text to 
speak for itself. 

BOOK III. OF FOSTERAGE. 

IN a state of society where fastidious refinement has not destroyed 
the genuine feeling of the heart, the tie of fosterage is, next to that 
of blood, of the strongest and most lasting nature. Even in the more 
remote parts of our own country the NURSE is still considered rather 
in the light of an humble relative than a menial dependent. By the 
people of Asia this idea is carried still farther ; and the nursing 
is supposed to partake of the very nature of her from whose blood 
he receives his earliest nourishment. An affinity is therefore created 
by this circumstance, which operates to render marriage illegal in the 
same manner as actual consanguinity. Hence the prohibitions occa- 
sioned by fosterage are analogous to those set forth in the second 
section of the preceding book, to which this is a kind of supplement. 

BOOK IV. OF DIVORCE. 

THE greate variety of matter which this book embraces, and the many 
deviations which it admits from its main subject, the translator shall 
not undertake either to account for or to defend, From the contents 
of the first six chapters the reader will perceive that the Mohammedan 
law of divorce bears a st/ong affinity throughout to that of MOSES. In 
this, as in marriage, rib written instrument is required, the repudiation 
being effected merely by the verbal declaration of the party. Custom, 
indeed, and the municipal regulations of most Mussulman countries, 
following the example of the Jews, have made a writing of divorce, if 
not an essential, at least a circumstance which it would be highly 
indecorous to omit. What most forcibly strikes us on the perusal of 
this subject is the extreme facility with which a husband may rid 
himself of his female partner, a facility which, when we consider the 
too frequent levity and fickleness of MAN, seems at first sight calculated 
to expose the weaker sex to the most degrading insult which malice 
could dictate, of caprice put in practice. The Arabian legislator has, 
however, established so many bars, and pride itself opposes such 
obstacle as, if they do not completely remedy, at least tend greatly to 
counteract this apparent defect. Before a divorce becomes irreversible 
it must have been pronounced three times, allowing (according to 
the orthodox form) an interval of a month to pass between each 
sentence; or such a period must have elapsed a* affords ample room 
for reflection and repentance, in cases of anger or disginJt ; ana' a 
reversal is, at any time before the expiration of that term, established 
by either word or deed, denoting a reconciliation. The husbanvd. 
moreover, unless he can prove gross misbehaviour, must give up^the 
dower. But the most powerful obstacle to unjust or capaicious 



xiv PRELIMINARY DISCOURSE. 

repudiation is that part of the law which provides, that if a wife be 
once completely divorced, the husband cannot take her again, until 
she be previously married to, bedded with, and divorced by, another 
man. To this salutary regulation chiefly is owing the dislike which 
obtains against divorce in all Mussulman countries, and the dishonour 
attached to it, insomuch that the instances of it are very rare, 
notwithstanding the liberty which is permitted by the LAW. The place 
and title of Chap. XV. would naturally lead us to conclude, that it 
treats in particular of the alimony payable to a divorced wife during 
the term of probation. This, however, is by no means the case ; for 
it is made to comprehend those rights of every person which come 
under the denomination of MAINTENANCE, not of the wife alone, but 
also of parent, children, poor or disabled relatives, and slaves. With 
respect to domestic arrangements, this is, perhaps, the most useful 
section of the whole work. It evinces, in many places, a considerable 
spirit of humanity, and very properly introduces. 

BOOK V. OF MANUMISSION. 

TENDERNESS towards SLAVES is certainly a prevalent principle in the 
Mussulman law, notwithstanding some passage which occur in this 
treatise concerning them are directly repugnant to common feeling, 
and to the natural rights of MAN. In the XXI Vth chapter of the KORAN 
this tenderness is strongly enforced with respect to certain points in the 
domestic treatment of them* and it may also be traced in various parts 
of this Commentary. It is, indeed, in practice pretty much confined to 
the slaves professing the Mussulman faith, as it is natural to suppose 
that the followers of the Prophet do not entertain the same regard 
towards their bond-servants of other religions. Still, however, we 
shall be guilty of great injustice, if we forgi our'ideas of Mussulman 
slavery from the treatment experienced by Qhristian captives among 
the barbarians of Tunis and Algiers. The precepts concerning manu- 
mission are injunctive with respect to believers only ; but those 
which recommend kindness and good usage apply to all alike. The 
law in many instances affords them protection against injustice, and 
declares them to be "claimants of right." It in some particulars, 
moreover, provides an alleviation to this otherwise most hopeless and 
degraded state of MAN, unknown to the more polished inhabitants of 
Europe; as may be perceived in perusing the Jaws with respect to 
Am-Walids, Mokatibs, ModabbirS, and Mazoons. To the free-born 
denizen of BRITAIN, the very name of SLAVE carries with it something 
odious and disgustful : but the Mohammedan bondman, generally 
speaking, experiences in a very slight degree, if at all, the miseries 
which necessarily attend that state in some of the dependencies of 
EUROPE ; where the riches of the community grow out of the incessant 
labour of wretches, whose shortened date of life is balanced against 
their earnings by rulej of Algebra and calculations of Arithmetic ! If 
tfre slave$ of Mussulman appear, by their conduct, to be deserving of 

The passage referred to treats of matchmgs slaves who are single : "CONTRACT 
in marriage) THOSE OF THEM WHO ARE SINGLE, SUCH AS ARE WORTHY, OF YOUR MALE 

LND'FEMALR (slaves) ; IF THEY BE POOR, GOD WILL ENRICH THEM OF HIS BOUNTY." 

UNTO SUCH AS DESIRE A WRITTEN COVENANT (of Ki^bat), GRANT IT, IF YE SEE GOOD 

N THEM ; AND GIVE THEM OF THE RICHES OP GoD, WHICH HE HATH GIVEN YOU/' &C 



PRELIMINARY DISCOURSE. xv 

encouragement, they are frequently treated rather as humble friends 
and confidents than as servile dependants ; and though inhibited from 
rising in the state, often, in the capacity of Mazoons, amass a degree 
of wealth which enables them to purchase their freedom. The subject 
of manumission is discussed at large in the first five chapters of this 
book, Chap. VI. treats of a practice which was common in ARABIA 
before the time of MOHAMMED, and was confirmed by his precepts. It 
affords a strong incentive to emancipation, by enabling a master to 
perform an act of piety which, being posthumous in its effect, cannot 
injure his circumstances. Chap. VII. exhibits a branch of that most 
important article, "the establishment of parentage." It shows, that the 
children born to man by his female slaves are as legitimate as those 
begotten in marriage ; and also, that the Mussulman law, like the 
Roman, does not acknowledge any affinity between a bastard and his 
father, but throws him wholly upon the mother. 

NOTE. On turning to Book V. it will be seen that the subject 
treated of has been omited, on the ground that slavery having been 
abolished by Act V. of 1843, there is no use in preserving the law 
upon the subject, which will be interesting to the antiquarians only 
and he can find the learning upon the subject in the earlier editions. 

BOOK VI. OF Vows. 

OATHS are one of the bonds of society, and in many instances 
the chief security for public integrity and private property. Perjury, 
therefore, has in all communities been justly reprobated as a most 
flagrant crime. It is remarkable, however, that the Mussulman law has 
instituted no specific punishment for this species 6f offence, except in 
the case of slander, the legislator seeming to think the apprehension 
of punishment in a future state of itself sufficient to restrain men from 
the commission of it. This is evidently the case with respect to the 
expurgatory oaths required of accused or suspected persons. In matters 
of property, indeed, the magistrate is at liberty to punish it by a 
slight discretionary correction ; but in those most enormous instances 
of it which implicate the life of MAN, the only ill consequence it 
induces, on discovery, is a fine adequate to the blood thus unjustly 
s h ec l : __! a ver y trifling atonement certainly ! In this defect, however 
(if it be such), of their law, the Mussulman do not stand alone. 

NOTE. The law of perjury is now regulated by the Penal Code. 

VOL. II 
BOOK VII. OF PUNISHMENTS 

THIS book treats only of the punishment incurred by cirmes 
of a spiritual nature, those instituted for offences" against person or 
property being discussed under their respective heads. Thek>punishment 
for adultery is certainly severe. Yet we will not, perhaps, be forward 
to condemn this severity, if we compare it for a moment with what is 
recorded in the twentieth chapter of Leviticus upon the same point. 
In fact, from the nature of the evidence required, it was next to 
impossible that the offence should ever be fully proved, even among the 



xvi PRELIMINARY DISCOURSE. 

tents of the AR\BS; so that the institution of the prescribed punishment 
was in a great measure nugatory, except in cases of confession by 
the parties. That those confessions were sometimes made in the early 
days of Islamism, is a fact ; and made, as they were, at the certain 
expense of life, they afford a wonderful instance of devoted zeal 
among the first followers of MOHAMMED. Still, however, even in those 
instances, every means that precaution could suggest is enjoined to 
avoid the necessity of inflicting the sentence. The three first chapters 
of the book relate entirely to whoredom, and the penalties incurred by 
each species of illegal connexion. Chap. III. involves some curious 
matter concerning the retrospective limitations of testimony, which in 
practice extend to all cases of criminal accusation. Much here occurs, 
likewise, concerning the general laws of evidence, that may not be 
deemed unworthy of nptice. Chap. IV. containing the penalties of 
drunkenness, exhibits a degree of lenient indulgence with respect to 
that vice which we should scarcely expect to meet in a Mussulman law- 
book, as it hence appears that a man may offend in this way, even to 
a considerable degree, without any danger of legal cognizance.- 
Slander, as treated of in Chap. V. comprehends all expressions which 
may either affect the reputation of a man or woman previously possessed 
of a fair character, or the legitimacy of their issue ; and the punishment 
has, added to it, an effect equally just and politic, namely, incapa- 
citating the slanderer from appearing as an evidence on any future 
occasion. Discretionary correction, which forms the subject of Chap. 
VI. extends to all petty descriptions of personal insult, even to abusive 
language, fn fact, two thirds of thi punishment incurred under the 
Mussulman jurisdiction at the present day, whether in Turkey, Persia, 
or India, are inflicted under the name ofTazeer. We must not pass 
this book without noticing the extraordinary indulgence shown to 
slaves, in subjecting them, for all spiritual offences, to only half the 
punishment of freemen. The reasons alleged for this lenity manifest 
an uncommon degree of consideration and feeling for the state of 
bondage. 

BOOK VIII. OF LARCENY. 

THE Translator has adopted the term Larceny, as the title of this 
book, because that work expresses every species of THEFT, from the 
most petty to the most atrocious. The uniform punishment annexed 
to Larceny is the amputation of a limb, unless where the act has been 
accompanied by murder, in which case the offender forfeits his life 
by the law of RETALIATION. Many arguments might be adduced 
against the law of mutilation in cases of Larceny, founded as well on 
the inhumanity as the inefficiency and inconvenience of that mode 
of correction. It is, however, the only method expressly authorized by 
the text of the KORAN ; and if we consider the force of religious 
prejudice, and the* effect of long habit, it may, perhaps, appear very 
unadvisablc to introduce any hasty alteration in the penal jurisdiction 
in this particular, especially as we have nothing better to offer by 
way of substitute (for surely our penal laws are still more sanguinary !), 
and also, as the Gentoo laws, with respect to theft are strictly 
Analogous to the Mussulman, in awaking mutilation under certain 
circumstances. Chap. VII. of this book is particularly worthy of 



PRELIMINARY DISCOURSE xvii 

attention, as it respects the most daring and outrageous breach 
which can be made against the peace and security of society. To enter 
fully into the spirit of the text, in this and many other parts under 
the head of larceny, it is requisite that we keep in mind the peculiar 
manners of the people in those parts of the world where the Mussulman 
law operates. It is observable that, at the end of this book, a 
remarkable instance is incidentally introduced of the forbearance of the 
law in a case of homicide upon provocation. 

NOTE. Book VIII. has been omitted, as the question of larceny, 
as now applicable to India, is regulated by the Penal Code, Act XLV. 
of i860. 

BOOK IX. THE INSTITUTES 

THIS book contains a chief part of what may be properly termed 
the political ordinances of MOHAMMED, and is useful both in 3 
historical and a legal view, in the former, as it serves to explain the 
principles upon which the Arabians proceeded in their first conquests 
(and in which they have been imitated by all successive generations of 
Mussulmans), and in the latter, as many of the rules here laid down, 
with respect to subjugated countries, continue to prevail in all of that 
description at the present day. The nature and end of those regulations 
is so fully explained in the text, that they do not require any 
illustration or comment in this place*. 

BOOK X. OF FOUNDLINGS. 

ONE of the earliest and most laudable attempts of MOHAMMED, in 
the prosecution of his pretended mission, wes, to correct certain 
barbarous practice? than, prevalent among his countrymen, particularly 
with respect to infanjk ^dfiildren, whom it was common for the parents 
to expose or put to death, where they apprehended any inconvenience 
from the maintenance of them. The present book is to be considered 
merely as a comment upon his precepts in this particular. 

BOOK XI. OF TROVES. 

Book XII. ABSCONDING OF SLAVES. 

NOTE. This has been omitted for the same reason as Book V. 

BOOK XIII. OF MISSING PERSONS. 

THE rules laid down in these booKs win be found, in general, 
strictly consonant to natural justice, and such as prevail (or ought to 
prevail) in all well-regulated communities. 

BOOK XIV. OF PARTNERSHIP. 

THIS Book contains a number of subtle distinctions with respect tc 
property, in many of which acute discrimination seems to be studied 

* This book has been drifted, as it has hardly any practical effect ; and, i 
requisite, the former edition can be consulted. 



xviii PRELIMINARY DISCOURSE 

more than practical utility. Several of them the reader may indeed be 
tempted to consider rather as the scholastic reveries of an abstracted 
divine, than as flowing from an active intercourse with the world, or 
dictated by the liberal spirit of commerce. Still, however, it will 
perhaps be found, that in the mass of speculation much matter is 
interwoven of a more substantial kind. The MUSSULMAN laws of 
property (to ascertain which is one great end of the present work) are 
in some instances defined with considerable precision ; and the various 
subdivision it exhibits to us of representative wealth, as opposed to 
real, gives us an interesting idea of the refinement which, so many 
centuries ago subsisted in Mohammedan countries with respect to those 
particulars. 

BOOK XV. OF WAKF OR APPROPRIATIONS. 

IN all Mohammedan countries (and in none more than in 
IJiNDOSTAN) it has been a common practice to dedicate lands, houses ; 
and other fixed as well as movable property to the use of the 
poor, or the support of religion. The founding of a mosque, 
the construction of a reservoir, and even the digging a well, for 
the public use, come all under the same head; and many nohlc 
monuments of these kinds are still to be seen in different pans 
of INDIA the useful effects of benevolence or superstition, in 
the more flourishing periods of the Mogul empire. That empire 
has, indeed, long since been hastening to decay ; and the monuments of 
Mussulman piety or magnificence have suffered, with it, a sympathetic 
dilapidation. Numberless grants of LAND, however, to pious or charitable 
uses, have been executed at different times, of which many are still 
in full force, under the general title of Aima ; and these must give 
some interest to the subject of the present book, in which the various 
modes of alienation are discussed with considerable accuracy. 



BOOK XVI. OF SALE. 
BOOK XVII. OF SIRF SALE. 

To enter fully into the subjects of these books, would occupy 
more time and space than is consistent with the brevity of prefatory 
remark. The observations we have made concerning BOOK XIV. 
will equally apply to these throughout. The book of SALE is swelled by 
avast accession of incidental matter. Of these, the most striking is 
USURY, the subject of Chap. VIII. The Mohammedans, In this parti- 
cular, closely copy the Jewish law, by which the children of ISAREL were 
also strictly forbidden to exercise usury among each other. To this 
chapter the book of SIRF SALE may in some measure be considered a 
supplement, since it seems chiefly calculated to guard and provide 
against the practice of USURY in the exchange of the precious metals. 

BOOK XVIII. OP BAIL. 

UNDER thfs head are comprehended all sorts of security, whether 
fqtf" persons or property. This book contains a good deal or practical 
matter (particularly in the laws concerning guarantees), and is 
therefore worthy of an attentive persual. 



PRELIMINARY DISCOURSE xix 

BOOK XIX. TRANSFER OF DEBTS. 

Is in some measure supplementary to the former, as the transaction 
of which it treats is performed by way of giving security to a creditor. 

BOOK XX. DUTIES OF THE KAZEE. 

THE subject of this book is of the utmost importance in all countries, 
as upon the conduct of the magistrates the welfare and happiness of every 
society must chiefly depend : and indeed the Mohammedans esteem it of 
so much importance, that several large works have been written, by 
their principal law commentators, under this title. In Chap. I. and II. 
the proper conduct of a judge, and the behaviour required in him, are 
briefly defined. In these, however, as well as in the succeeding chapters, 
the text wanders strangely from its professed subject, and goes into a 
variety of matter which would appear to fall more properly under 
other heads. 

BOOK XXI. OF EVIDENCE. 
BOOK XXII. OF RETRACTATION OF EVIDENCE. 

THESE are two as useful books as any in the whole work, and 
develope some of the most important principles in judicial proceed- 
ings xhe last section of Book XXI. shows, that the punishment 
incurred by perjury are (as has been already noticed) of a very slight 
nature, and calculated to* operate more upon*men's feelings than their 
fears. The reasons for this lenity are of the same description with 
those urged by our lawyers. Perhaps, indeed, the infamy and perpetual 
disqualifications to which the witness is subjected by it may^ operate 
as effectually as those penalties which the LAW prescribes ; but it is 
certain that false testjmSny is regarded with less abhorrence by 
Mohammedans in general than among Christians. 

VOL. III. 

BOOK XXIII. OF AGENCY 
BOOK XXIV. OF CLAIMS 

IN the former of these books nothing very remarkable occurs, the 
laws with respect to agents being in general analogous to those which 
obtain in our own courts. Book XXIV. chieflyjrelates to the conduct 
of suits at law and the rules to be observed iij administering oaths, &c. 
It also comprehends much extraneous matter with respect to the various 
subjects of suits. Chap. V. treats of a point already mentioned, 
namely, the establishment of parentage. In all societies where polygam) 
and concubinage are allowed, this subject must necessarily afford 
frequent ground for litigation. 

BOOK XXV. OF ACKNOWLEDGMENTS. 

IT is only necessary to remark of this book, that Acknowledgment, 
in the Mussulman LAW, has the sarnie effect, in the establishment 01 
transfer of property, as a fottnal deed. 



xx PRELIMINARY DISCOURSE 

BOOK XXVL OF COMPOSITIONS, 
BOOK XXVII. OF MOZARIBAT. 

THESE books contain a quantity of technical matter. Mozaribat 
seems to have been a device adopted in order to avoid the imputation 
of usury, by which the monied man was enabled to obtain a profit 
from his capital without the odium of receiving any interest upon it. 
This species of contract is in common used in Hindostan. 

BOOK XXVIII. OF DEPOSITS. 
BOOK XXIX. OF LOANS. 
BOOK XXX. OF GIFTS, 

THESE books chiefly consist of plain rules, applied to ordinary 
^ses. it is to be remarked, however, that the Mussulman law, 
with respect to gifts, differs considerably from the Roman, in leaving to 
the donor an unrestricted right of resumption. 

BOOK XXXI. OF HIRE. 

IT is a book of considerable practical utility, as it comprehends every 
description of valuable usufruct, from the hire of land to that of a 
workman or an animal. 

BOOK XXXII. OF MOKATIBS. 

BOOK XXXIII. OF WIL T A 

IT is probable that many of the laws in these? Hooks have now fallen 
into disuse, or are confined to Arabia, Persia, and Turkey. The pri- 
vileges and immunities of WILLA, however, still obtain in all Mussulman 
countries, and are of considerable consequence, as involving many 
rights liable to become subjects of litigation. The privilege allowed 
to a slave, of covenanting for and purchasing his freedom, place the 
Mussulman laws of bondage in a striking, but not a disagreeable light. 

NOTE. This book has also been omitted for the same reason as 
Book V. 

BOOK X^XIV. OF COMPULSION. 

IT is in general agreed, by most juridical writers, that a defect 
of the will, arising from compulsion, is an excuse for any crime 
. committed, and an annulment of any deed executed under it. In the 
Mussulman code this nj\e, however, does not invariably hold, is from 
wh*t occurs under this head it appears, that compelled contracts or 
other act ; V are * nevertheless valid in their effect ; and that offences 
committed under the influence of fear have still a degree of criminality 
attached to them. 



PRELIMINARY DISCOURSE xxi 

BOOK XXXV. OF INHIBITION. 

THE subject of this book comprehends every species of incapacity, 
whether natural or accidental. The second chapter exhibits one of 
the most striking features in the institutes of Mohammedanism. How 
far legal restiictions upon adult prodigals are calculated for the 
advantage of the community at large, is not our business to inquire. It 
is, however certain, that the imposition of wholesome limitations 
upon thoughtless extravagance, and every other species of folly, if 
more generally introduced, would operate powerfully to- preserve the 
property and peace of families, and (perhaps) the virtue of individuals. 
The inhibition upon debtors, as contained in Chap. III. is well worthy 
of attention. 

BOOK XXXVJ. OF LICENSED SLAVES. 

THAT regulation of the Mussulman law by which a master is 
empowered to endow his slave with almost all the privileges and 
responsibilities of a freeman, preserving, at the same time, his property 
in him inviolate, affords a strong proof of its tenderness with respect 
to bondage. It in fact places the slave who obtains this advantage 
rather in the light of an attached dependant than of a mere servile 
instrument, deprived of privilege, and destitute of volition. 

NOTE. This book has been omitted for the same reason as Book V. 

BOOK XXXVII. OF USURPATIONS. 
BOOK XXXVIII. OF SHAFFA. ' 

THE points of discussion which occupy these books are of some 
importance in every view. The reflations in th<2 former are, for the 
most part, sanctified by natural justice, and those in' the latter, by 
many considerations of, co'nveniency and expedience. Several parti- 
culars which occur in treating of Usurpation must indeed be referred 
to certain customs prevalent in Arabia. The right of pre-emption 
enjoyed in virtue of community or contiguity of properly, is perhaps 
peculiar to the Mussulman law. However accommodating to the 
interests and partialities of individuals, this privilege rifay nevertheless 
be considered as liable to some objection, on the score of affording 
room for endless litigation. Under certain restrictions, it is both a just 
and a humane institution. 

VOL. IV. 
BOOK XXXIX. OF PARTITION. 

THIS book relates chiefly to the division of inheritable property. 
By the Mussulman law, as by the Roman, parceners in an estate may be 
constrained to make partition of their joint inheritance; for which 
purpose proper officers are appointed by public ^uthorfty. The same 
rule also extends to other descriptions of partnership property. Tlft 
principal tendency of the disquisitions under this head is, o l shoto 
what are proper objects of partition, and in what instances th 
magistrate is at liberty to compel the parties to accede to the separation 



xxii PRELIMINARY DISCOURE 

of their joint possessions. The laws of usufructuary partition, as 
contained in Chap. V., possess much curious originality. 

BOOK XL. COMPACTS OF CULTIVATION. 
BOOK XLI. COMPACTS OF GARDENING. 

THESE books are of use chiefly on account of the regulations with 
respect to landed property which incidentally occur in them. They 
exhibit the farming of lands in a very imperfect state, and at a time 
when money had as yet come little into current use. They, however, 
explain a number of principles upon this subject equally applicable to 
all ages. 

BOOK XLII. OF ZABBAH. 

IN the Mohammedan as in the Jewish LAW, the eating of blood 
is strictly forbidden, and hence the various rules and precautions are set 
for under this head. It appears, from some passages, that the 
Arabian Prophet was desirous of inculcating not only a scrupulous 
regard to the purity of food, but also a humane and tender attention 
to the feelings of the animals destroyed for the purpose of supplying 
it. This last is indeed a sentiment discoverable in many parts of his 
precepts. 

BOOK XLIII. OF SACRIFICE. 

SACRIFICE, whether asb a memorial or an expiation, is one of the 
most ancient religious observances which occur in the history of 
mankind. The particular ceremony which is the subject of this book, 
was institued in commemoration of ABRAHAM'S obedience to the 
Divine command by the intended sacrifice of his son. This son the 
Arabian commentators make to be their great f>rojgeni tor ISHMAEL, and 
not ISAAC, whom they assert to have been promised subsequent to 
that event. This conclusion they draw from the manner in which the 
whole circumstance is worded in the thirty-seventh chapter of the 
KORAN, though the passage is certainly very equivocal. The anniversary 
of this rite falling on the tenth of Zee-al-Hidjee [the month of 
pilgrimage], it is performed by pilgrims in the valley of Minna, and 
constitutes one of the prescribed ceremonies of pilgrimage. It is, 
however, equally enjoined on all others possessed of the ability; and 
may be performed by any man at his own habitation. The rules 
respecting it are few and simple ; and are, in fact, of little consequence 
in a civil light, farther than as they tend to affect property. 

* 
BOOK XLIV. OF ABOMINATIONS. 

A SUBJECT which involves a vast variety of frivolous matter, and 
Oust be considered chiefly in the light of a treatise upon propriety 
and decorum. In it is ^particularly exhibited the scrupulous attention 
pai^J to female modesty^, and the avoidance of every act which may tend 
to violatgl it, tven in thought. It is remarkable, however, that 
this does^not amount to that absolute seclusion of women supposed by 
sotine writers. In fact, this seclusion is a result of jealousy or pride, and 
not of any legal injunction, as appears in this^and several other parts of 



PRELIMINARY DISCOURSE xxiii 

. Neither is it a custom universally prevalent in Mahom- 
medan countries. 

BOOK XLV. CULTIVATION OF WASTE LANDS. 

IN most Mussulman governments, particular encouragement has 
been held forth to the reclaiming of barren or deserted grounds, by the 
powerful incentive of granting to the cultivator a property in the soil. 
A considerable portion of this book is occupied with discussions upon 
the right to water, that element being justly regarded as a most valuable 
commodity in countries where, from the heat of the climate, the ground 
is liable, for the greatest part of the year, to excessive drought; and 
where, of course, the success of tillage must chiefly depend upon an 
artificial supply of it. 

BOOK XLVI. PROHIBITED LIQUORS. 

IN prohibiting the use of wine (under which term are included all 
descriptions of inebriating liquors), the Prophet meant merely to restrain 
his followers from unbecoming behaviour, and other evil effects of in- 
toxication. At first the precept was issued in the KORAN simply against 
drunkenness which amounted only to a prohibition of excess in the use 
of strong liquors ; but this not proving sufficient for the purposes of 
complete determent, the negative injunction was produced, by which 
inebriating fluids were altogether proscribed, and declared unlawful. 
The tendency of this book is chiefly, to exhibit the opinions of their 
divines concerning what kind of liquors thoselne which fall under the 
denomination of prohibted ; in which we may trace the rigid scrupulosity 
of the more early Mussulmans upon this point. At present, however, 
they are not, in general, very strict observers of the LAW in this particu- 
lar, their modern doctors Allowing that fluids various may be drank, 
either medicinally or for measure, provided it be done with moderation, 
and so as to avoid scandal. 

BOOK XLVII. OF HUNTING. 

THIS book is, properly, a supplement to Zabbah ; and any reflec- 
tions upon it may therefore be referred to the observations under that 
head. 

BOOK XLVIII. OF PAWNS. 

BOOK XLIX. OFFENCES AGAINST THE PERSON. 

IN determining the measure of punishment for offences committed 
upon the persons of men, the lex talionis seems at first sight to 
have been dictated by natural reason, and to be consistent with a 
justice, as affording the best means of a strict and equal retribution. 
Accordiiftly, we find it among the earliest institutes of ever^ society 
approaching to a state of perfect civilization. Before^ the *ti me ai 
MOHAMMED, the administration of public justice being little^known 
in Arabia, personal injuries were a fruitful source of private revengs 
and civil war, and preserved, among the descendants of ISHMAEL,* a 
sanguinary ferocity of spirit, which was considered as a virtue rathei 



xxiv PRELIMINARY DISCOURSE 

than a blemish in their character. The Prophet soon perceived it 
necessary to the completion of his project, to introduce a reform in 
this particular ; and therefore, with a view at once to indulge his 
countrymen's propensity to revenge, and to preserve the peace of 
the community, shortly after his flight to Medina (as it is said), revealed 
t at passage of the KORAN allowing of retaliation, in which he has 
nearly copied the law of MOSES. As equality is the professed ground 
of this institution, the Mussulman doctors, in their comments upon 
it seems, to have followed the literal acceptation of the text in all 
cases where the observance of this equality is possible. In practice, 
however, retaliation is seldom or never inflicted upon a limb or 
member ; but a mulct is imposed in proportion to the injury, and 
according to the circumstances by which it is excited or attended. In 
fact, however equitable this mode of requital may appear in some 
instances of personal injury, yet, when applied to all without 
limitation, it certainly involves much gross absurdity and injustice, a 
charge from which it does not stand acquitted by all the distinctions 
which the commentators have established concerning it in this book. 
Hence it is that the Mussulman courts, following the example of the 
Jews, understand the words of the KORAN, in all cases short of life, 
in the same manner as those do the Pentateuch ; that is, not as 
awarding an actual retaliation, according to the strict literal meaning, 
but an atonement in exact proportion to the injury- Thus much with 
respect to wilful offences. That law by which a man is made responsible 
in his property for offences unintentional or merely accidental, is 
certainly, in some instances, rather rigorous. It was, however, 
well calculated, in an irregular society, and a defective state of 
civilization, to guard men from acting carelessly, and has a strong 
tendency to support. and inculcate the sacredness of the person of 
MAN.* 

BOOK L. OF FINES. 

ALTHOUGH the manner in which this subject is treated involves a 
considerable portion of frivolous absurdity, yet we also find, in the 
course of its discussions, many wise and salutary regulations, both 
for preserving the security of the person, and the peace and good 
order of society. We may perceive, from the persual of it, that a 
man is made responsible not only for his overt acts, but likewise for any 
injury which may be more remotely occasioned by his carelessness, 
obstinacy, or wilful neglet. The degree of the fine was originally 
fixed at a certain amount, that for the life of a man being determined 
at one hundred camel, and all others at a proportionable rate, 
according to the injury. In later times, however, the changes in 
manners, and in the value of property, introduced other modes of 
ascertaining amercement, and fines came to be levied not only m 
proportion to the injury sustained, but also according to the 
circumstances of the. case. Chap. VL exhibts the only species of 
iriftuest admitted by the Mussulman law in cases of uncertain homicide, 
consisti/% solely of expurgatory oaths. However well calcuated this 

have been for the meridian of Arabia or Irak, and for the state 



" This subject has been omitted, as it is now dealt with by the Indian .Criminal 
Law. 



PRELIMINARY DISCOURSE. xxv 

of society in those countries at the time these laws were first 
systematized into a code, it is certainly but a poor device for the 
detection cf guilt or the ascertainment of fact in a well-regulated 
community. It is remarkable that a law strictly correspondent to 
what is mentioned in this chapter formerly prevailed among the 
Saxons and other northern nations of EUROPE, where the responsibility 
for unascertainable bloodshed lay with the master of the family, or 
with the people of the tithing in which the body was found.* 

BOOK LI. THE LEVYING OF FINES. 

THE subject of this book is purely of a local nature, relating entirely 
to the levying of fines upon the Arabian tribes for offences uninten- 
tionally committed by any individual of them. These regulations serve 
to give us a pretty clear idea of the state of society in the native 
land of Islamism. However useless, and perhaps impracticable, in a 
more advanced state of refinement, these, as well as many regulations 
in the two preceding books, were well calculated to reduce a fierce 
people under the restraints of law and civil government. 

NOTE. See note to Book XLIX. 
BOOK LII. OF WILLS. 

WITH respect to the forms of wills, the same observations occur 
as have been already made in treating of MARRIAGE. In fact, as 
writing was formerly very little in use aipong the Arabs, all deeds 
are, in the commentaries upon their laws, regarded and mentioned as 
merely oral. Hence WILLS, as discussed in this book, are solely of the 
nuncupative description. The most remarkable^ features in this book 
are, the restrictions imposed upon testators with respect to the disposal 
of their property. 

BOOK LIII. OF HERMAPHRODITES. 

THIS book, and the succeeding chapter, which, because of its 
being detached from any particular subject, is termed CHAPTER THE 
LAST, are a kind of supplement to the rest of the work. Hermaphrodites 
are probably a class of beings which exist in imagination rather than 
in reality. We shall therefore leave this book to speak for itself. 
The last chapter is worthy of particular notice, as (if we except 
bills of sale and judicial letters) it is the only part of the work in 
which anything is mentioned concerning forms of WRITING. 

IN concluding this short review, the translator esteems it his duty 
to add, that it is a very imperfect summary indeed of the work 
which is now presented to the public. The subjects of it would 
admit of a much more ample discussion. But to enter into a compara- 
tive ancf analytical survery of topics so numerous and important would 
of itself require a large volume; and the pauence of the reader*is 
perhaps exhausted. The more particular investigation of the&we shall 
therefore leave to his own reflections or inquiries ; ana hasten 
to conclude an essay, for the length of which no other apology can Ite 

* See the note above. 



xxv i PRELIMINARY DISCOURSE. 

offered, than an anxious wish to forward the chief end of this publi- 
cation/by throwing some light upon a subject dry in itself, and not 
without its difficulties, and accommodating it to the preceptions of 
those whom duty or curiosity may lead to make it an object of their 
study. 

OF the importance of a work in which the translator has borne so 
large a share, it may not become him to say much ; but as the 
objects of it are of a public nature, and as it has been brought forward 
in some measure at the public expense, he feels himself called upon 
to hazard a few words in vindication of its probable utility. 

WITH respect to the immediate end proposed by those who 
originally projected this translation, all that is necessary to be stated 
may be resolved into one summary argument. While the Mohammedan 
LAW is allowed to be the sole standard of criminal,* and in a 
great measure of civil jurisprudence throughout our dominions in 
&NDIA (and it would perhaps be neither prudent nor possible hastily to 
introduce any other system), it appears indispensably necessary that 
those who are to protect the rights of the people, and who are 
responsible for the proper administration of public justice, should 
possess the means of consulting the principles on which the decisions 
of the Mussulman courts are founded. This reflection acquires still 
greater weight, when we consider how very large a portion of subjects 
under the British government in INDIA are Mohammedans, upon 
whose attachment to their rulers much of the prosperty of our 
Asiatic empire must necessarily depend. 

THE advantages to be derived from a development of the institutes 
of MOHAMMHD are, however, not confined to the administration of 
justice in our Asiatic * territories. The commerce ef GREAT BRITAIN 
extends to almost every region where his religion is professed ; 
and as this work is a commentary upon the juridical code of the 
OTTOMAN as well as of the MOGUL empire, and is applicable to the 
customs and judicial regulations of Cairo, Aleppo, or Constantinople, 
as well as of Delhi or Moorshedabad, it can scarcely fail to open a 
source of desirable knowledge to the merchant and the traveller. 
In a political view, likewise, it is humbly presumed that this work 
will not be found altogether uninteresting. At the present eventful 
period, when we have seen new empires springing in to birth, and 
the old indignantly throwing ofT the long rivetted chains of despotism, 
the grandest remaining fabric of rslamism seems hastening to its 
fall. In expecting this mighty ruin, we are naturally led to inquire 
upon what principles the ibric was founded, and to what causes 
we are to attribute its decay. Some parts of the following treatise are 
particularly calculated to assist us in such an investigation. We 
may there observe that, however sagaciously it might be formed for 
j&2 sudden extension of dominion, during an age when mankind^were 
involved in the darkest gloom of superstition and ignorance, the 
Mussulman' system, civil and religious, is but wretchedly adapted to 
the purposes of public security or private virtue. We may observe, 
with somJ degree of laudable exultation, its obvious inferiority, in 

* See the Penal Code, and Code of Criminal Procedure. 



PRELIMINARY DISCOURSE xxvii 

every useful view, to that excellent system which >\c pcfu.*, and 
which is so admirably calculated to promote the temporal (ccd of 
mankind, as well as their eternal happiness ! 

BUT it is time to close this address. The translator cannot, 
however, conclude without paying that tribute which justice and 
gratitude demand. Concerning the public zeal, the pcnetiating and 
comprehensive mind of the Gentleman to whom the work is dedicated, 
it is unnecessary to enlarge in this place. From him the present 
translation derives its existence ; and the merit of his design received 
its best confirmation in the continuance of support it experienced 
from his^ immediate superiors, as well as from his successors in 
office. To the liberal attention and honourable confidence of SIR 
JOHN MACPHERSON and his Colleagues in the BENGAL government it 
is owing, that the translator was at all enabled to look forward 
to the completion of his labours. Yet this attention and confidence, 
flattering as they were, would not have sufficed to bear him through an 
arduous and expensive undertaking, had it not been aided by the 
generous and munificent support of the COURT OF DIRECTORS, whose 
regard to every effort which may tend to promote the interests of our 
Oriental dominions has been repeatedly experienced both by himself 
and others. Conscious of his own deficiencies, he has only to hope it 
may appear, that what they have liberally granted has been faith- 
fully and diligently employed. He entertains too humble an opinion 
of his abilities not to be sensible that, with all his assiduity, aided by 
the many happy suggestions of the worthy and excellent friend who 
had for some time been his Colleague in the performance, it will 
still be found far short of perfection. The chief business of a 
translator, when engaged in an undertaking of this kind, is scrupulous 
accuracy, and the only merit he can claim laborious application. 
The former of the'se tl\e present translator has endeavoured to 
preserve,, and the latter he presumes to affirm has not been wanting. 
Nevertheless, there is undoubtedly much room for correction and 
amendment. The very nature of the work rendered the translation 
of it a business attended with no common degree of difficulty. 
Treating of an abstruse science, the technical terms of which but 
nakedly explained, and frequently not to be met with in any of his 
guides, all the light the translator could obtain to a knowledge of 
his subject necessarily sprung out of the text ; and consequently, as 
he advanced, he saw continual occasion for retrospective alterations, 
which amounted to little less than a repetition of his labour. He 
found himself therefore frequently at a loss ; and repeatedly experienced 
the truth of an observation made by our immprtal Lexicographer, that 
"a writer may often in vain trace his memory, at the moment of 
need, for that which yesterday he knew with intuitive readiness, and 
which will come uncalled into his thoughts to-morrow." 

IN Confirmation of his wish to render thisjDublication, as much 
as in his power, worthy of the patronage under which itAias be4n 
conducted, the translator hopes he may be indulged fn the\?gotism 
of the remark. that he has dedicated his three last years unreniittedly, 
to revisal or re- translation. He now dismisses it with an anxious 
wish that that patronage may not appear to have been bestowed, or 
his own efforts applied, in vin ! 



THE HEDAYA; 



COMMENTARY ON THE MUSSULMAN LAWS. 



BOOK I. 

OF Z A K A T. 

Definition of the term. ZAKAT, in its 
primitive sense, means purification whence 
it is also used to express a contribution of a 
portion of property assigned to the use of 
the poor, as a sanctification of the remainder 
to the proprietor. It is by some commenta- 
tors termed the indispensable alms. 
Chap. I. Introductory. 
Chap. li. Of Zakat from Sowayeem 

that is, Herds and Flocks. 
Chap. III. Of Zakat from Personal 

effects. 
Chap. IV. Of the laws respecting those 

who come before the Collector. 
Chap. V. Of Mines, and buried Trea- 
sures. 
Chap. VI. Of Zakat from the Fruits 

of the Earth. 
Chap. VII. Of the Disbursement of 

Zakat. 
Chap. VII [ - -OfSadka-fittir, 



CHAPTER I. 

Obligation of Zakat and the conditions upon 
which it is incumbent. ZAKAT is an ordinance 
of God, incumbent upon every person who is 
free, sane, adult and a Mussulman, provided 
he be possessed, in full propriety, of such 
estate or effects as are termed in the language 
of the law a Nisab, and that he has been in 
possession of the same for the space of one 
complete year, which is denominated Hawlan- 
Hawl. The reason of this obligation is found 
in the word of God,' who has ordained it in 
the KORAN, saying, "BESTOW ZAKAT." The 
same injunction occurs in the traditions ; and 
it is moreover universally admitted. The 
reason for freedom being a requisite condi- 
tion is, that this is essential to the complete 
possession of property. The reason why 
sanity of intellect and maturity of age are 
requisite conditions shall be hereafter demon- 



strated. The reason why the Mussulman 
faith is made a condition is, that the render- 
ing of Zakat is an act of piety, and such can- 
not proceed frojm an infidel. The reason for 
the possession of a Nisab being a condition is 
that the Prophet has determined the obliga- 
tion of Zakat upon that amount. The reasons 
for Hawlan-Hawl being made a requisite 
condition are twofold ; FIRST, because some 
space of time is necessary to increase* of pro- 
perty, and the law determines this at one 
year, because the Prophet has declared, 
"ZAKAT is not due upon property until the 
same shall have been possessed one year by 
the proprietor : " SECONDLY, the proprietor 
of a Nisab is able, within such a period, to 
obtain an iryf rcasc from it, since in a year 
there are four seasons, in each of which it 
most commonly happens that such property 
bears a different price ; wherefore the rule is 
determined accordingly. It is to be observed, 
that some maintain Zakat to be due imme- 
diately upon the completion of Hawlan Hawl, 
and others that it is so through, life.f 

Zakat is not due from infants nor from 
maniacs. ZAKAT is not incumbent upon in- 
fants or maniacs Shafei declares Zakat to 
be an obligation connected with property and 
therefore that it is incumbent upon those, as 
well as upon other proprietors, in the same 
manner as subsistence to a wife, and Tythe 
and Tribute ; but to this our doctors reply 
that Zakat is an act of piety, and, as such, is 
fulfilled only by being paid with the option 
of those who are subject to it ; and infants 
and maniacs are not held in law to be pos 
se sed of option, this being necessarily con- 
nected with reason, which they are not 
endowed witft ; but this does not apply to 
Tribute, as that is a provision arising from 



*Dy increase is here understood that ob- 
tained by breeding, where the Nisab consists 
of cattle, or bv jjiofit, where it consists of 
merchandise. 

fThat is to say, annual), upc\ the same 
property, so long as it remains witrfcthe pro- 
prietor. 



Z.V;AT. 



{VOL. 



the soil, fur ih^ r-x^enses oj the btate ; n n to 
Tythe, as that is also in some shipe 'if the 
same nature. 

With certain exceptions. IF a huiat'C hive 
lucid intervals within the year, it is the simc j 
asif they happened -vithm th^ month of Rant- 
x in : tint i* t sw. ifh m recover . his re .1 son 
within the year, he is subject to Zakat, in the 
same manner as if he were to recover it within 
the month of Kamzan, in which case he would 
have to make up for the days of Lent he had 
omitted in consequence of his insanity -- 
Aboo Yoosaf has observed, that regard is to 
be paid to the length or continuance of the 
lucid intervals ; that is to say, if they con- 
tinue the greater part of the vc*r, the lunatic 
isr.ubjecl to Zakat ; but if he be insane for 
the greater part, it is not incumbent upon 
him. It is to be observed, that origin il anil 
supervenient insanity are here considered as 
the same ; by original is understood th.it 



quence ut vo vs or on account of expiations* 
do not turbid the obligation to pay Zakat : 
pay /akat in the continuance of the Nisab, 
as that \vould be thereby rendered defec- 
tive: and, in like manner, a debt of Zakat for- 
bid* Zikit af.er the dissolution of the Nisab. 
The case of the continuance of a Nasib is, 
where the proprietor keeps it for two years 
without rendering any Zakat upon it, in which 
case no Zakat is due from him on account of 
the second year; because a Zakat, in the propor- 
tion of one m forty, is already due onaccount 
of the preceding year, whence the full amount 
necessary to constitute a Nisab does not re- 
main in the second year : and the case of 
dissolution of the Nisab is, where the pro- 
prietor keeps the same for the full space of 
one year without paving Zakat, and then dis- 
poses of the Nisab, and afterwards becomes 
possessed of another Nisab, and this also con- 
tinue in his possession for the complete space 



which appears in a person in m f ancy, and | of one year; in which case, no Zakat is due 

continue? upon him as he grows uptopu- upon this second Nisab because a proportion 

bcrty ; and by supervenient, thu which ot; -urs of one in forty is already occupied by the 

after a person has attained the years of ma- Zakat due on the former Nisab which has 

turity. It is related as an opinion of Aboo Iven disposed of. Zi tier controverts the rule 

Yoosaf that if a person attain maturity in a i in both these cases: and it is also said that 
becomes sane, the 



state of insanity, and then 
vear* is considered to commence from the 
instant of his recovery, the same as a boy 
attaining puberty, with whom it is regarded 
as commencing on the d.iv of his mijontv. 

Nor from Moftatibv Zakat is not incum- 
bent upon a Makatib, he not being co.npletelv 
and independntly possessed of property. 
since h* is still a slave ; whence* it is that he 
is not at liberty to emancipate anj' of his own 



Aboo Yoosar controverts it with respect to 
tht* second case. The reason why a debt of 
Zakat thus forbids any further obligation to 
pay Zakdt is, that the claimant of a debt of 
Z.ikat is, in fact an individual,* as the 
claimant thereof, in pastures, is the Imam, 
arid, HI ai fides of merchandise, the deputy 
if the Imam; f anil the proprietor of the pro- 
perty, in all other articles, is the Imam's 
substitute, f 

Nor n /ion the nc~eisarics nf life. ZAKAT 



slaves. ^ j . ______ 

Nnr from in toll wit Jeblor* --Z\K\T is i is not due upon dwelling-houses or articles ot 
not incumbent up ma man against whom there j clothing or household furniture, or caltle 

kept for immediate use, or slaves employed 

as actual 



are debts equal to, or exceeding, the amount 
of Ins whole property. Imam Shafei alleges 
that it is incumbent, because the cause of the 
obligation, to wit, possession of an increasing 
NISAB, is established Fo this our doctors 
replv that such a Nisab is not possessed by 
him clear of incumbrance. and is therefore 
held to he nonexistent, the same as water, 
which, when provided for the nle purpose of 
drink, f is h-l 1 to be non existent with re- 
spect to performance of the Tammce- n, and 
cloth provided for the' purpose of apparel, 
whiih i* held non-existent with icspcct to 
the obligation of Zakat. hut if his property 
exceeds liis deht, Zakat is due upon the ex- 
cess, provided the same amount to what is 
sufficient to constitute a Nisab, and that it 
br: free fro n iiiciimbranc*. I5y the debts here 
mentioned are uiiderstood those. '.hie to indi- 
viduals ; such, therefore, as are due in conse- 



* For the establishment of Hawlan-Hawl 
in his possession. 

(As in the caravans, where water is pro- 
vided andrf irnecL upon camels for drink, but 
not for thr purpose of purification, which in 
that or similar situati in* is permitted to be 
pA farmed with sar.d. 



servin's, or armour, or weapons 
designed for present us. ; all these falling 
under ths description of necessaries ; neither 
are such considered as increasing property ; 
and the same of books of science, with respect 
to scholars, and likewise of tools, with re- 
spect to handicrafts ; these being to them as 
necc.^sai irs 

iN/07 npnn uncertain property. IF a man 
have a claim upon another for a debt, and the 
other dispute the same and some years thus 
pass awav. and the claimant be destitute of 
proof, anil the debtor afterwards make a de- 



*In opoosition to Ciod; for, if Zakat were 
claimed purely as a right of God, the payment 
of it would be absolutely and unconditionally 
incumbent. 

(Because the Imam i.* always supposed to 
collect the Zakat upon pastures in person, 
and that upon merchandise by his deputies, 
i.e. by collectors placed at particular stations 
for that purpose. 

I As the payment of Zakat, upon all other 
articles, is committed to the proprietor him- 
self. 



BOOK I. CHAP. I.] 



ZAKAT. 



claration or acknowledgment publicly, inso- 
much that ' there are witnesses of the same 
there is no obligation upon the claimant to 
render any Zakatt for so many years as have 
thus passed. This uncertain sort of property 
is termed, in the language of the law, Zimar: 
and trove property, and fugitive slaves, and 
usurped property, respecting which there is 
no proof, and property sunk in the sea, or 
buried in the desert and its place forgotten, 
and property tyrannically seized by the Sul- 
tan, are all of the description of Zimar : and 
all these articles are equally exempted from 
Sadka-fittir. f Ziffer and Shafei maintain, 
that all these articles are subject both to 
Zakat, and also to Sadka-fittir, as the cause 
of the obligation to pay Zakat (to wit pos- 
session of a Nisab) is established in each of 
them, although it was not in the immediate 
seisin of the proprietor whilst it fell under 
the description of Zimar, which does not for- 
bid the obligation of Zakat; like the property 
of a traveller, which if it remain in his house, 
is nevertheless subject to Zakat, although it 
be not at the time in his hands. The arcju- 
ments of our doctors herein are twofold: 
FIRST, Alee declared that no Zakat is due 
upon Zimar property : SECONDLY, the cause 
of the obligation to pay Zakat is the posses- 
sion of property in a state of increase, which 
cannot be the case but where the proprietor 
has an immediate power of management over 
it ; but this does not apply to a traveller who 
has property at home, as he may mana T C it 
by agents. 

PROPERTY buried in the home of the pro- 
prietor is not Zimar, because it is easily 
recovered ; but with respect to property 
buried in any other ground than that on 
which the house actually stands (such as the 
garden, for instance) there is a difference 
among our modern doctors. 

it is due upon unquestionable, property. 
I ROPERTY which is acknowledged ;bv a 
debtor to be owing to his creditor is .subject 
to Zakat, whether such debtor be rich or 
poor, because the recovery of it is possible : 
or if the debtor dispute the demand, yet 
here also the property in question is subject 
to Zakat, provided there he proof sufficient 
to siibstantiate the creditor's claim, or that 
the Kazee himself be satisfied of the justice 
A *j ; . r becatlse hcre also recovery i possible. 
And if the acknowledging debtor be poor. 
that is to say, if the Ka7>e declare him 
insolvent ;- yet here also the property in 
question is subject to Zakat, according to 
Haneefa, he holding that a Kar.ee's decla- 
ration of the insolvency of a debtor is not 
approved : but Imam Mohammed maintains 
that the property in this case is not subject 
to Zakat he holding a Kazee's declaration 
ota debtors insolvency to be approved. 



*Uponthe property which is the subject 
of the claim. 

Cha F Vin cxplanation of Sadka-fittir, see 



Aboo Yoosaf agrees with Mohammed re- 
specting the validity of a Kazee's decree of 
insolvency ; but he, at the same time co- 
incides with Haneefa, that the property of 
which the debt consists is not, in this case, 
subject to Zakat. 

Intention of traffic in property subjects 
it to Zakat. If a person purchase a female 
slave for the purpose of traffic, and after- 
wards retain her for his own use, declaring 
his intention, no Zakat is due -upon her, 
because the intention is here connected with 
the act namely, the relinquishment of traffic 
in her; and an intention thus declared, when 
connected with an act, is to be credited : 
and if he should afterwards declare a design 
of trafficking in her ; yet no Zakat will be 
due upon her in virtue of such declaration, 
until he actually dispose of her by sale, 
because here the i ntention is not connected 
withthe act, and consequently she is not held 
to be a subject of traffic from his declara- 
tion, unless he actually sell her, when Zakat 
is due upon her pyce. 

IF a person purchase a thing with an in- 
tention of traffic.it is to be considered as 
an article of traffic, on account of the con- 
nection of an intention of traffic with the 
act, to wit. purchase: contrary to a case 
where a person obtains possession of property 
by inheritance, and intends to traffic in the 
same, such not being considered an article 
of traffic merely from the intention, since 
that, in this case, bears no relation to the 
act*. 

IF a man become possessed of property by 
gift, or bequest, or marriage or Khoola, or 
composition fot blood, and intend trafficking 
in the same, it becomes (and is, in virtue of 
his intention, considered as) an article of 
merchandise, according to Aboo Yoosaf, 
he holding the intention here to be connected 
with the act. It is related as an opinion of 
Imam Mohammed, that this property does 
not become as merchandise, because the in- 
tention is not here connected with the act of 
traffic, which is understood only by pur- 
chase and sale; some, however, have related 
this difference of opinion the reverse of what 
is here mentioned. 

Intention of Zakat. in the payment, neces- 
sary to its validity. THE payment of Zakat 
is not Uwful, exceot under an intention 
existing at the period of such payment, or at 
the period of setting apart the proportion of 
Zakat from the Nisab property, because the 
rendering of Zakat is an act of piety, to 
which the intention is essential; and a 
radical princi^e of the intention is that it be 
connected with the payment : but yet, mas- 
much as the giving of Zakat to the poor in 
necessarily an act of frequent repetition and 
Occurrence, it suffices that the intention 
exist at the period of setting apart the pro- 
portion of Za!<at (aj aforesaid), for the sake 
of convenience. 



That is, to the means by which ft.yh pro- 
perty was acquired. 



ZAKAT 



[VoL. I. 



Excepting under certain circumstances ; 
IF a man bestow his whole property in 
charity, without intention of Zakat, the 
obligation of Zakat, with respect to him, 
drops, upon a principle of benevolence, 
because such obligation extends to a certain 
part of his property only ; and where the 
whole is thus bestowed, that part is neces- 
sarily included ; whence it is that there is 
no necessity for his specifying the same by 
intention, 

Ira man give to the poor a portion of his 
Nisab property, without intention of Zakat, 
his obligation to Zakat drops with respect to 
such portion (according to Mohammed), be- 
cause the part of his property due (on 
account of Zakat) affects the whole of his 
Nisab equally, wherefore, when a part of 
the Nisab is thus bestowed the proportiondue 
upon such part goes along with it. Aboo 
Yoosaf maintains that the ob'igation to the 
Zakat of that portion does not drop, because 
no part thereof is particularly specified as 
Zakat, the remainder of the Nisab being the 
subject from which the obligation is to be 
discharged: contrary to where the whole Nisab 
has been bestowed, since there the proportion 
d ue on account ^ of Zakat goes, a certiori, as 
being involved in the whole. 



CHAPTER II. 

OF ZAKAT FROM SAWAYEEM J THAT IS, 
N HERDS AND FLOCKS. 

Definition of Sawayeem, SAWAYEEM is 
the plural of Sayeema ; and Sayeema is, by 
the learned, understood to imply camels, 
oxen, goats and other animals which sub- 
sist for the greater part of the year upon 
pasture : wherefore, if they live but half 
the year in pastures, and are fed for the 
othrr half upon forage, they do not fall 
under the description of Sawayeem.* And 
this chapter is divided into several heads. 

Sect. i. Of the Z ahat of Camels. &c. 

One goat due upon five camels, &c No 
ZAKAT is due on fewer than five camels ; and 
upon five camels the Zakat is one goat, pro- 
vided they subsist upon pasture throughout 
the year ; because Zakat is due only upon 
such camels as live on pasture, and not 
upon those which* are fed in the house with 
forage. d 

ONE goat is due upon any number of 
camels from five to nine ; and two goats is 
the Zakat on any number from ten to four- 
teen ; and three on any number from four- 
teen to nineteen and four upon any number 



*Thi* term 1 ' is in our dictionaries trans- 
lated^Jastures, but the above is the precise 
definition of it. 



from twenty to twenty-four ; and upon any 
number of camels from twenty-five to thirty- 
five the Zakat is a Binnit-Makhass, that is 
a yearling camel's colt; ; and upon any 
number from thirty-six to forty-five, a 
Binnit-liboon, or camel's colt of two years ; 
and upon any number from forty-six to 
sixty, a Hikka, or four-year old female 
camel ; and upon any number from sixty- 
one to seventy- five, a Fazeeyat, or five-year 
old female camel ; and for any number from 
seventy-six to ninety, the Zakat is two 
camel's colts of two years ; and on any 
number from ninety-one to OIK, hundred and 
twenty, two Hikkas. These proportions of 
Zakat upon camels are what were written by 
the Prophet in his letters and instructions to 
his public officers and Aumeels. And when 
the number of camels exceeds one hundred 
and twenty, the Zakat is calculated by the 
aforesaid rule ; that is to say, where the 
whole number is one hundred and twenty- 
five (for instance), the Zakat is one goat for 
the odd five, and two Hikkas for the one 
hundred and twenty ; and if the excess 
number be ten, two goats; and if it be fifteen, 
three goats ; and if it be twenty, four goats ; 
and if it be twenty-five, a yearling camel's 
colt ; and if the whole number of camels be 
one hundred and fifty, the Zakat is three 
Hikkas ; and if the number exceed one 
hundred and fifty by five, it is then one goat 
and three Hikkas, that is to say, three 
Hikka upon the hundred and fifty, and a 
goat upon the odd five ; and upon one hun- 
dred and sixty camels, the Zakat is three 
Hikkas and two goats ; and upon one 
hundred and seventy, three Hikkas and four 
goats ; and upon one hundred and seventy- 
five, three Hikkas and one yearling colt ; and 
upon any number from one huivlred and 
eighty-six to one hundred and ninety-five 
the Zakat is three Hikkas and a two-year 
old colt ; rfnd upon any number from one 
hundred and ninety-six to two hundred, the 
Zakat- is' fcmr Hikkas ; and in this manner is 
the Zakat to be calculated upon every fifty 
camels exceeding one hundred and fifty. 
This arrangement is according to our doctors. 
Shafei alleges that when the number ex- 
ceeds the hundred and twenty by one only, 
the Zakat is three two-year old colts ; and if 
if amount to one hundred and thirty, it is 
one Hikka and two two-year old colts ; after 
which the Zakat is calculated at a two-year 
old colt upon every forcy camels, and a 
Hikka upon every fifty : the Prophet, upon 
a particular occasion, having written to one 
of his Aumeels to this effect, without makins 
any mention of a goat upon the odd five, and 
so forth. But our doctors, in support of 
their opinion, as above, cite the letters of the 
Prophet to Omar, where he says, "upon 
every five camels the Zakat is one goat." 

Female camels only ^awful in the pay- 
ment of Zakat. AND it is to be obse-ved 
that, in the payment of the Zakat of camels, 
females alone are lawful, because males are 
held to be lawful only in regard to their 



BOOK I. CHAP. II ] 



ZAKAT. 



value,* such being recorded both in the 
sacred writings and in the traditions. 

Camel* of all descriptions included. 
CAMELS of,every description, whether Bac- 
trian, Arabian, or others, are all included in 
these rules of Zakat, as the term camel 
[Shutr] is common to all. 

Sect.II.Of the Zakat of Horned Cattle. 

One yearling due upon thirty kine, &c. 
No Zakat is due upon fewer than thirty 
kine; and upon thirty kine, which feed on pas- 
ture for the greater part of the year, there is 
due at the end of the year a Zakat of one 
Tubbee, that is, a follower, or yearling calf, 
male or female ; and upon forty there is 
due one Misna, or calf of two years, male 
or female, on the authority of the Prophet ; 
and where the number exceeds forty, the 
Zakat (according to HANEEFA) is to be calcu- 
lated agreeably to this rule, so far as sixty ; 
that is to say, if there be one animal more 
than the forty, there is an additional Zakat 
of the fortieth part of a Misna ; and if two, 
of the twentieth part of a Misna ; and so on 
to the number sixty. What is here ad- 
vanced accords with the Mabsoot ; and the 
ground upon which it proceeds is that, in the 
sacred writings, the Zakat is particularly 
specified for any number between thirty and 
forty, and also for those of sixty and above, 
but none for the numbers between forty and 
sixty, Hasan states the doctrine of Haneefa 
to be in this case, that, on the numbers from 
forty to forty- nine, no excess Zakat whatever 
is due ; and that upon fifty kine the Zakat 
is one Misna, and the fourth of a Misna, or 
the third of a Tubbee ; because upon every 
Akid, or drove of even number, in a Nisab 
of cattle, such as thirty, forty, or fifty head 
Zakat is due, but not upon any intermediate 
number. The two disciples say that no 
Zakat whatever is due upon any odd number 
between forty and fifty; and there 'is also one 
tradition of the opinion of Han*efa to this 
effect ; and the reason they allege is, that the 
Prophet said to Maaz. "Take not anything 
fromanOwkas of kine," and he explained 
an Owkas to mean any number between 
forty and fifty. And upon sixty kine, the 
Zakat is two yearling calves, male or female : 
and upon seventy, one Misna and one Tubbee 
and upon eighty, two Misnas : and upon 
ninety, three Tubbees : and upon one hun- 
dred, two Tubbees and one Misna: and thus 
on every ten head, a Misna and a Tubbee 
alternately, the Prophet having ordained that 
the Zakat upon thirty kine should be a 
Tubbee ; and that upon forty a Misna : 
thus, upon one hundred and ten kine, the 
Zakat is two Misnas and one Tubbee ; and 
upon one hundred and twenty, four Tubbees. 

THE usual method, however, of calculating 
the Zakat upon large herds of cattle, is by 



*That is to say, the price of a male is 
held to be lawful in Zakat, but not the 
animal 



dividing them into thirties or forties, im- 
posing upon every thirty one Tubbee; or upon 
every forty one Misna. 

Buffaloes aie included with other horned 
cattle. IT is to be observed that buffaloes are 
included with kine in the laws of Zakat, 
these being also considered as a species of 
black cattle ; but yet, in our country,* the 
buffalo is not regarded as of the black cattle 
species ; whence it is that if a person were 
to make a vow, saying, "I will not eat of the 
flesh of black cattle," and were afterwards 
to eat buffalo beef, he would not be forsworn 

Sect. HI. Of the Zakat of Goats. 

One goat due upon forty #oat5, &c. No 
Zakat is due upon fewer than forty goats ; 
and upon forty goats, which feed for the 
greater part of the year upon pastures, there 
is due, at the expiration of the year, a Zakat 
of one goat ; and this Zakat suffices for any 
number from forty to one hundred and 
twenty : and if .he number exceed one hun- 
dred and twenty, a Zakat of two goats is due 
from one Hundred and twenty-one to two 
hundred : and if it exceed two hundred, .a, 
Zakat of three goats is due from two hundred 
and one to three hundred and ninety-nine : 
and if it amount to four hundred, the Zakat 
is four goats : and beyond four hundred the 
Zakat is one goat for every hundred : the 
Prophet haying thus ordained, and all the 
doctors uniting in this opinion. It is also to 
be observed, that the same rules of Zakat 
are applicable to sheep as to goats, the term 
Ghannem, in the tradition equally implying 
both species. 

Kids ot lambs are not acceptable payment 
unless they be above a year old. IN the 
Zakat of goats or sheep, Sinnees are accept- 
able payment, but not Juzzas. This is the 
Zahir-Rawayet. Sinnees are kids which 
have entered on the second year ; and Juzzas 
are such as have not yet completed their 
first year. The two disciples have said that 
the Zakat may be paid with the Juzzas of 
sheep ; and there is one opinion of Haneefa 
recorded to this effect ; and the reasons are 
twofold ; FIRST the Prophet has said, "The 
Zakat upon them consists of Juzzas and 
Sinnees ; SECONDLY, sacrifice is fulfilled 
by the immolation of a juzza, and therefore 
Zakat may be also discharged by it. The 
ground upon which the Zahir-Rawayet pro- 
ceeds is also twofold ; FIRST, a saying of 
Alee, "In Zakat nothing is acceptable short 
of a Sinnee;" SECONDLY, in the Zakat of 
goats it is incumbent to give those of a 
middling-size, and the juzzas ofsheep are 
not of that standard, being small ; whence it 
is that the Juzzas of goats also are not ac- 
ceptable in Zakat. With respect to the first 
reason urged by the two disciples, it may-Ii; 
replied, that by the term Juzza, as men- 
tioned in the , tradition, is to be understooc 
the Juzzas of camels, that is, yearling colts 



*Meaning Persia or Hiniostan. 



ZAKAT 



VOL, I. 



and what they say of sacrifice is no rule, as 
that of a Juzza is approved (not by analogy, 
but) from the express words of the sacred 
text. 

But males and females are equally ac- 
ceptable. IN paying the Zakat of goats or 
sheep, males and females are equally accept* 
able ; the term Shat, in the traditions ap- 
plying indiscriminately to both genders. 
Sect. IV. Of the Zakat of Horses. 

One Deenar per head due upw horses, or 
five Deenars per cent on the total value.- 
WHEN horses and mares are kept indiscrimi- 
nately together, feeding for the greater part 
of the year on pasture, it is at the option 
of the proprietor either to give a Zakat of 
one Deenar per head for the whole, or t 
appreciate the whole, and give five Deenars 
per cent upon the total value: and this last is 
the mode adopted by Ziffer. The two disciples 
maintain that no Zakat whatever is due upon 
horses, the Prophet having ordained that 
Mussulmans should not be subject to ZAKAT 
for their horses or slaves. Harreefa in sup- 
port of his doctrine, as above, states an ordi- 
nance issued by the Prophet, in which he 
directed that the Zakat upon ordinary horses 
should be one Deenar, or ten Dirms, per 
head. And with respect to the ordinance 
above quoted by the two disciples, that ap- 
plies solely to war-horses, and not to ordi- 
nary cattle. 

Zakat not due upon droves consisting en- 
tirely either of males or of females. No 
Zakat whatever is clue upon a Nisab of 
horses consisting entirely of males, because 
in that there can be no increase byr breeding ; 
and, in like manner, there is no Zakat upon 
a Nisab consisting entirely of mares, for the 
same reason. This is one tradition from 
Haneefa. There is another* tradition from 
him, however, which says that a Zakat is 
due upon mares although there be no horses 
among them, as horses can be occasionally 
borrowed by the proprietor for the purpose 
of producing, whence inciease may be had : 
but this is impossible with respect to droves 
consisting entirely of houses. 

No Zakat due upon asses or mules, unless 
as articles of commerce. THERE is no Zakat 
due upon asies or mules, the Prophet having 
said, "With respect to Zakat upon asses 
and mules, I have received no revelation." 
But yet, if these animals be as articles of 
merchandise, a Zakat is due upon them, be- 
cause, in the present times, Zakat is im- 
posed upon the property involved in them 
the same as upon any other c article8 of 
traffic. 

Sect. V. Of the Zakat of Kids, and Calves, 

and Camels' Colts. 

No Zakat due upon the young of herds or 
flocks until a year old. No Zakat whatever 
is due (according to Haneefa) upon the 
young of goftts, k'ne, or camels, which are 
under on^?ear ' that is to say, if a man 
were to purchase twenty -five camels' colts 
(for instance) or forty kids, or thirty calves, 



and one complete year should pass from the 
period of possession, still no Zakat is due ; 
nor does any become due until the expira- 
tion of the term of a year afte they shall 
have been grown up. 

One camel's colt due on 25, &c. ABOO 
YOOSAF holds that Zakat is not due upon 
fewer than forty kids, or thirty calves or 
twenty-five camels' colts : and upon twenty- 
five camels' colts the Zakat is one colt : and 
there is no further Zakat due till the number 
amounts to seventy-six, when the Zakat is 
two colts ; because upon seventy-six Misnas 
a Zakat is due of two Binnit-liboons ; and 
there is no further Zakat till the number 
amounts to one hundred and forty- five when 
it is three colts ; because upon one hundred 
and forty- five Misnas the Zakat is two 
Hikkas and one Binnit-makhass. There are 
other traditions of the opinion of Aboo 
Yoosaf herein ; but the above, as being a 
posterior record, supersedes them. 

Case of the payment of Zakat by substitu- 
tion. Ira person owe, as Zakat, a Misna, 
and it should hanpen that he is not possessed 
of one, having no cattle in his flocks but 
% what are either under or over that descrip- 
tion, the officer who collects the Zakat is at 
liberty either, in the former case to take an 
animal of the under rate, and the difference 
in money, or, in the latter, to take one of a 
superior sort, paying the difference of value 
between that and a Misna to the proprietor. 
It is to be observed that, in the latter case, 
no constraint is to be put upon the collector, 
who is at liberty to insist upon either the 
actual thing due (to wit, a Misna), or the 
value of one in money, because the accep- 
tance of an animal of the superior sort, on 
the terms above stated, wears the aspect of 
traffic ; his acceptance of it, therefore, can- 
not be compelled, insomuch that if the pro- 
prietor were tojofive him no obstruction in 
taking it/ yet he is not considered as being 
seized of i{ ;but the collector may be com- 
pelled to accept of an animal of an inferior 
sort, and the difference in money, insomuch 
that if the proprietor merely give no obstruc- 
tion to the officer, in thus taking the animal 
and the difference, he (the officer) is con- 
sidered as being seized of the same ; because 
here the tr?nsaction does not bear the aspect 
of purchase and sale, as the proprietor pays 
the inferior animal in part of the Misna, and 
consequently the difference along with it. 

Substitution of the value lawful. IF a 
proprietor, in Zakat, should, in lieu of the 
actual thing due, pay the value in money, it 
is approved, according to our doctors ; and 
the same holds good in expiation, or in the 
payment of Sadka-fittir, or Tythe, or the 
fulfilment of a vow. Shafei maintains that 
this is unlawful, because it is not lawful to 
exchange, for a substitute, anything specified 
in the sacred writings ; as in sacrifice (for in- 
stance) where a substitution of value for the 
victim is illegal. The argument of our doc- 
tors is, that God has himself ordained Zakat, 
and has directed the same to be distributed 



BOOK I. CHAP. II.] 



ZAKAT, 



in alms to the poor, which plainly indicates 
that the intent of the institution is merely 
that the poor should derive a subsistence 
from it, so as that their wants may be there- 
by relieved ; and to effect this the value will 
answer equally well with the specific animal, 
wherefore the substitution of the value in 
payment of Zakat is legal, the same as in 
payment of Jazzeeyat, or capitation-tax : 
but this reasoning does not apply to sacrifice 
as that is an act of piety, to the fulfilment of 
which the shedding of the blood of the victim 
is essential, wherefore no conclusion can be 
drawn from this instance, as there is no 
analogy between the two cases. 

Labouring cattle exempt from Zakat. 
CAMELS and oxen kept for the purpose of 
labour, such as carrying burthens, drawing 
the plough and so forth, arc not subject to 
Zakat ; n:ither is any Zakat due upon them 
where they are fed one half of the year or 
more upon forage. Malik controverts this 
doctrine ; but the arguments of our doctors 
herein are threefold ; FIRST, the Prophet has 
expressly ordained that these two species of 
cattle should be exempted from Zakat under 
such circumstances ; SECONDLY, the cause of 
the obligation of Zakat consists in the posses- 
sion of increasing property and the increase 
of cattle can be conceived only under two 
circumstances, that is, their being either kept 
in pastuies,* or for the purpose of traffick, 
neither of which is the case with the cattle 
now under consideration ; THIRDLY, in case 
where the cattle are fed upon forage, the 
keeping of them is attended with great 
expense, a circumstance which more than 
counterbalances any advantage to be derived 
from their breeding m such a situation, and 
therefore virtually prevents increase, al- 
though it may not actually do so. 

Must be paid in animals of a medium 
Value. THE officer, in collecting Zakat, is 
not at liberty either to insist upon tl^ best 
or to accept of the worst sort of the.propcrty 
collected upon, but must take what is of a 
medium standard, because the Prophet has so 
ordained it ; and also, because, in confining 
the Zakat to property of a medium value, 
regard is hail at once to the interest of both 
the parties concerned, to wit, the poor and 
the proprietor. 

Law respecting property acquired in the 
interim between the payments. WHOEVER is 
possessed of a Nisab property, and obtains an 
addition of the same sort of species within 
thp year, must add it to the Nisab, and pay 
Zakat upon the whole. Shafei objects to 
this, maintaining that the supervenient 
acquisition should not be added to the first 
Nisab, because the property of which that 
consists is original and independent with re- 
spect to propriety, and is therefore so with 



Meaning, that where the cattle are 
suffered to go at large, as in pastures, the 
males have free access to the females, which 
produces breed. 



respect to Zakat likewise : contrary to acqui- 
sition by breed or profit obtained within the 
year, that being a dependant only of the ori 
ginal property, and, as such, not to be con- 
founded with|it. To this our doctors reply, that 
the reason for supervenient acquisition, by 
brood or profit, being added to the Nisab is 
homogeneity in the subject of it; since* where 
the original and supervenient property are of 
the same species, it is not easy to discriminate 
precisely between them, and consequently 
difficult to ascertain the Hawlan-Hawl with 
respect to any species of profitable acquisi- 
tion arising from original property ; and as 
the Hawlan-Hawl is regarded only for the 
sake of convenience, it {therefore appears that 
homogeneity in the subject is ^a sufficient 
reason for the supervenient acquisition being 
added to the orginal property ; and this 
reason exists in the present case. 

Rules respecting the Afoo. THE two 
Sheikhs hold Zakat to be due upon the Nisab 
only, and not upon the Afoo ;* but Mo- 
hammed and Ziffer maintain it to be due 
upon both the Nisab and the Afop, that is, 
upon the whole : the result of which diffe- 
rence in opinion is that, if the Afoo were to 
perish, and the Nisab to remain, then, 
according to the two Sheikhs, the whole 
Zakat that had been before obligatory still 
remains due ; but, according to Mohammed 
and Ziffer, an adequate proportion of Zakat 
drops : and, in support of this latter opinion, 
Mohammed and Ziffer argue that Zakat is 
due as an acknowledgment for the blessings 
of Providence, and the Afoo is, a blessing the 
same as the Wisab ; that is to say, they are 
both equally blessings, wherefore Zakat is 
equally due upon both. The argument upon 
which *he Sheikhs support their opinion is 
twofold : FIRST, the Prophet has expressly 
said. "The ZAKAT upon five camels is one 
o;oat, and ZAKAT is due upon any fur- 
ther number till it amount to ten ;" and in 
like manner the Prophet has ordained the 
Zakat upon every Nisab, and forbidden it 
upon the Afoo ; SECONDLY, the Afoo is a de- 
pendant of the Nisab, whence, if a part of 
the whole Nisab and Afoo were to perish, the 
loss would be first calculated upon the Afoo, 
as being the dependant part ; as in a contract 
of Mozari bat, where any accidental loss is 
first calculated upon the profit, and not upon 
the capital: and on this ground it is that 
Hancefa accounts the loss upon the Afoo to 
the extent thereof, and beyond that upon 
the Nisab property of the first (or highest) 
denomination, and beyond that upon the 
Nisab of the n?,xt lower denomination, and 
so on to the last (or lowest) denomination of 
Nisab ; because the Nisab of the highest de- 
nomination is the principal, to which all the 



J Afoo literally means exempt % In the 
Zakat of cattle it is used to express "any in- 
termediate or odd number be twee* one 
Nisab and another, as between twenty-five 
and thirty-six camels, for instance. 



ZAKAT 



[VOL. I. 



inferior Nisabs are dependants ; and accord- 
ing to Aboo Yoosaf , the loss is calculated 
first upon the Afoo, and beyond that upon 
all the degrees or descriptions of Nisab col- 

Case of Zakat being levied by the Rebels.or 
Schismaticks. *!F the rebels or schisma ticks 
overcome any particular tribe of Mussul- 
mans, and take from them the Zakat of their 
cattle, when these rebels are driven away, 
the rightful Imam must not impose another 
Zakat upon that tribe, because it appears 
from the above circumstances that the Imam 
has not protected them, and the right of im- 
posing Zakat appertains to the Imam, in 
virtue of the protection he affords ; the 
learned however have decreed, upon this case, 
that the tribe in question should repeat their 
Zakat, and pay it a second time, but not 
their Tribute, because the latter is declared, 
in the sacred writings, to be applicable to the 
use of the warriors who fight their enemies; 
and hence rebels may be considered as an 
object of its application, they also answering 
this description ; whereas the only object of 
the applicatio \ of Zakat is the poor, and 
rebels do not bestow what they may levy 
upon the tribe, under that denomination, to 
the use of the poor ; wherefore it is neces- 
sary that the tribe should again pay Zakat, 
so as that it may be applied to its proper 
object ; but not their Tribute. Some of our 
doctors say, that if the aforesaid tribe, at 
the period of paying Zakat to the rebels, 
intend in so doing to give them alms, in this 
case Zakat drops with respect to that tribe, 
and there is no necessity for th* ir afterwards 
repeating it : and the giving of Zakat to any 
tyrant or plunderer whatever is capable of 
this construction, because persons of this 
description, whatever wealth they may be 
apparently possessed of are yet actually poor, 
on account of the retribution, which lies 
against them hereafter : but the former 
doctrine (that the tribe should repeat their 
Zakat) is preferable to this, because here the 
Zakat is rendered and applied, a certiori 

How far the. Toglib tribe are subject to 
Zakat, THE Zakat of cattle is not incum- 
bent upon an infant of the tribe of Toglib ;f 
and whatever is incumbent upon the men of 
that race is so upon the women also, because 



* This and the next following case are 
merely local in their application, and allude 
to the state of ArabJa, shortly after the estab- 
lishment Qf Islamism. The schismatic ks 
were those who refused to submit to the law 
of the Prophet ; whilst others (like the tribe 
of Toglib, mentioned in the next case) sub- 
mitted and paid tribute. 

t One of the Arabian tribes, who refused 
to embrace the faith, but agreed to pay tri- 
bute to the Prophet. The tribe itself is sup- 
posed to.be lonk since extinct ; but the laws 
to wh^cn the people of it were subject are 
applicable, in general, to all infidel tribu- 
taries. 



peace was made with them upon those terms, 
"that they should pay, of al) public im- 
posts, double what as paid by Mussul- 
mans ;" now the Mussulman women are 
subject to Zakat. and it follows that the 
women of the Toglib race are so in a double 
proportion ; but on Zakat whatever is re- 
quired of infant Mussulmans, wherefore the 
infants of the aforesaid tribe are not subject 
to it. 

An accidental destruction of the property 
induces an exemption from Zakat. IF the 
property be destroyed, without being con- 
sumed by the proprietor after Zakat has 
become due (that is to say, after the comple- 
tion of Hawlan-Hawl), the Zakat upon it 
drops. Shafei has said that if the property 
be destroyed after the proprietor has been 
enabled to pay the Zakat upon it, either by 
the claimant making his demand of Zakat, 
or by the proprietor rinding a claimant, 
although such claimant should not have 
demanded it, in this case the proprietor is 
responsible for the Zakat, because it was 
clue from him, and he did notpay it, although 
it was in his power to have done so ; more- 
over, if he should not pay the Zakat upon 
the requisition of the claimant, this circum- 
stance stands as a destruction of it on his 
part. The argument of our doctors is, that 
the Zakat due is a portion or part of the 
Nisab ; and, as its destruction is involved in 
that of the Nisab, it drops of course, the 
same as where a slave commits a Janayat 
f offence against the person], in which case 
it is incumbent upon the proprietor to make 
over that slave to the Walee-Janayat, or 
person entitled to the composition ; but, if 
the slave should die or be lost in the interim, 
the proprietor is no longer responsible for the 
transfer of him, and that consequently drops; 
and, with respect to the second argument of 
Shafei, it may be replied, that no person can 
be conji iderea as the claimant of Zakat except 
a pauper whom the proprietor may have spe- 
cified as the object of its application, and the 
case does not suppose the requisition to be 
made by such an one But if the collector 
demand the Zakat, and the proprietor 
neglect payment, and the Nisab afterwards 
perish, there are various opinions among the 
Haneefite doctors, some alleging that the 
proprietor of the destroyed Nisab. in that 
case, still remains responsible for the Zakat 
due upon it whilst others maintain that, 
in this instance also, he is not responsible, 
because the Nisab does not here appear to 
have been destroyed by him. 

A partial destruction includes a propor- 
tionable exemption IF, after Hawlan-Hawl, 
a portion of a Nisab (such as a third for in- 
stance) should be destroyed, the claim of 
Zakat is proportionably destroyed, in the 
same manner as where the whole Nisab is 
destroyed ; in which cas$ the whole Zakat 
drops. 

Zakat may be paid in advance. IF the pro- 
prietor of a Nisab should pay the Zakat upon 
it, before Hawlan-Hawl, it is lawful, because 



BOOK I.- CHAP. III.] 



ZAKAT. 



r he has here paid it during the existence of 
the creative principle of obligation to Zakat, 
which is understood in his possession of a 
Nisab ; this payment, therefore, is approved, 
the same as a discharge of a debt, under the 
existence of its cause ; as where a Mohrim, 
for instance, pays expiation for wounding 
game whilst animal is yet alive. This 
doctrine is controverted by Malik. 

IF the proprietor of a single Nisab should, 
before Hawlan-Hawl, make payment of 
Zakat upon the same for a certain number of 
years in advance, or should pay a Zakat 
upon a certain number of additional Nisabs, 
it is approved, because the first Nisab is the 
original with respect to the cause of the obli- 
gation of Zakat, and anything beyond that 
is as a dependant 



CHAPTER HI. 

OF ZAKAT FROVf PERSONAL EFFECTS 

Sect I Of the Zakat of Silver. 

No Zfik-it dne on Jess than JMO dirmi. No 
Zakat i* due on less than two hundred 
Dirms,* because the Prophet his ordained 
that there shall be no Zakat upon fewer than 
fiv? Awkiyat.f nnd an Awkiyat is valued at 
forty Difms. 

And upon 200 at the rate nf two and an 
ha'f per cent THE Zikat Nisah of silver is 
two hundred Dirms ; and if a man becomes 
possessed of two hundred Dirnis. and the 
Hawlan Hawl be completed, the Zakaf due 
upon it is five Dirms, because th" Prophet 
wrote to Maz?:. finyirg. "TTnon two hundred 
DIRMS take a ZAKAT of five DTRMS ; and 
upon twentv MISKALS of tr ^M, half a Mis- 
KAL " 

And fit the sn*ne rate upon every forty 
ihove two hundred No Z^kat is due upon , 
nnv excess above the two hundred I}irms, 
till siirh excess amount to forty. urnn which 
the Zakat is one Dirm : and iinoif every 
succeeding fortv the same Zakat is due. but 
not on fewer than forty. This is according 
fo Haneefa The two disciples have said 
that a proportionate ZaVit fa Hue on what- 
ever excess may occur over and above two 
hundred Dirms ; and SHafei coincides in 
this opinion, because in the traditions of 
Mee it is related that the Prophet has o 
urdained it ; and also, because Zikat is 
endured as a return of gratitude for the 
")lessin^s of Providence ; anH the reason 
vhy it i<? exnresserl as a condition, in the 
Beginning of this book, that the property. 
in order to cause, an obligation of Zakat, 
imount to a Nisab, is that the proprietor 



*A silver coin, value about two pence 
iterling. 

fAn ounce of silver ; or a silver coin of 
hat weight, value between six and seven 

J 



may thence appear to be in easy circum- 
stances ; but where, from his being pos- 
sessed of a Nisab, this appears to be already 
the case, it is not requisite that any excess 
amount to a Nisab ; and hence Zakat is 
due upon such excess proportionably, what- 
ever its amounts may be. 

OBJECTION!. This would lead to a con- 
clusion that, in the Zakat of cattle, the 
same is due upon any excess under a Nisab ; 
whereas the rule is otherwise, no Zakat 
whatever being due upon such excess, since 
that is considered as Afoo, or exempt. 

REPLY. Such is the conclusion from 
analogy ; but the excess in cattle is made 
Afoo, because, if a proportionate Zakat 
were to be levied upon it, this would neces- 
sarily induce a copartnership in the subject, 
by the proprietor admitting the claimant of 
Zakat to a share in it : for instance, the 
Zakat upon twenty-five camels is one year- 
ling colt ; now, if Zakat were due upon 
excess camels, and the drove consist of 
twenty-six there would be a Zakat upon 
this on^ excess, camel of the twenty-fifth 
part of a yearling colt, which is not payable 
in any vay than by admitting the claimant 
to a partnership in such colt ; and this 
partnership, being compulsive, is illegal; 
but plate or cash not being liable to the 
same objection, a Zakat is due, propor- 
tionably, upon any excess whatever over 
two hundred Dirms. 

Rules respecting the calculation nf a Nisab 
nf silver. IT is to be observed, that the 
Nisab of silver of two hundred Dirms is 
calculated by the Wazn-sebbayat, or sep- 
timal weight ijvhich is in the proportion of 
ten Dirms to seyen Miskals), as this was 
the weight used in the tribunal of Omar, 
and that of the Dirm is thence established. 

THOSE Dirms in which silver predomi- 
nates are to be accounted as silver ; and 
the laws respecting silver apply to 'them, 
although they should contain some allov I 
and the same rule holds with all articles 
whatever falling under the denomination of 
plate such as cups, goblets, anrl so forth ; 
but Dirnrvs, in which the alloy predominates, 
are not to be accounted as silver, hut onlv 
as trailing property, estimable bv its real 
value, to which aline regard is to be had : 
and accordingly, if the value of them 
amount to a Nisab they are suhiect to 
Zakat, provided there be an intention of 
trafficking in them ; as is the condition with 
respect to all other chatties. In all plate, 
therefore, in which the -alloy prevail*, re- 
spect is to be had to the intention of traffick- 
ing in it. exceVting where the silver con- 
tained in it amounts to a Nisab, in which 
case the intention of trade In not a condition, 
nor is any regard paid to the estimated 
value, because in actual silver no respect is 
had to either of these. The above case is 
thus stated ; becjfcise money always con 
tains a small portion of alloy.tas ptile silver 
is unfit for coinage, since, without. hein<y 
hardened by an addition of some baser 



10 



ZAKAT 



[VOL. I. 



metal, it cannot retain the mint impression ; 
but the alloy is geneially in the smaller 
proportion ; regard therefore is had to ex- 
cess ; that is to say, if the proportion of 
silver be the greater it is accounted as silver 
but not if the alloy be in greater proportion 
(that is, in a proportion above a moiety of 
the whole weight). 

Sect. II. Of the Zakat of Gold. 
No Zakat due upon less than 20 Miskals ; 
and upon 2o at the rate of two and an half 
per cent THERE is no Zakat on fewer 
than twenty Miskals of gold, this sum being 
the smallest that constitutes a Nisab in that 
metal ; and the Zakat upon twenty Miskals 
of gold is one half Miskal, when the Hawlan- 
Hawl therein becomes established, on the 
authority of the tradition before quoted 
By the Miskal* here mentioned, is to be 
understood that which weighs in th* pro- 
portion of seven Miskals to ten Dirms ; 
and the Miskal consists of twenty Kerat,f 
and the Kerat of five grains 

And at the same rate upon every four 
above twenty. WHEN the 'quantity of gold 
exceeds twenty Miskals, on every four miskals 
of such excess a Zakat of two Kerats is due, 
because the Zakat due is fortieth of the 
whole, and two Kerats are the fortieth of 
four Miskal* and upon any excess short of 
four Miskals no Zakat is due, according to 
Haneefa. The two disciples hold that on 
every excess there is a proportionable Zakat, 
the same as mentined in the preceding 
section ; and the foundation of their diffe- 
rence in opinion is also the same here as was 
there recited, to wit, Haneefa holds that 
broken numbers are free of impost, whereas 
the two disciples maintain the contrary 
opinion The ground upon which Haneefa 
proceeds, in the rule here cited, is this : 
the legal value of a Deenar is ten Dirms, 
and a Deenar and Miskal are of the same 
weight ; the value of four Miskals in gold 
is therefore forty Dirms ; and consequently 
no Zakat is due upon fewer than four 
Miskals, since these stand the same as forty 
Dirms: and it has been already shown that 
nothing short of forty Dirms is subject to 
Zakat, on account of the tradition of Amroo 
Bin Khurrm, as before recited. 

General rule ZAKAT is due upon gold 
and silver bullion, which is termed Tebbur : 
and in like manner upon ornaments or 
utensils of gold or silver, whether the use 
thereof be allowable (such as rings, and so 
forth) or otherwise.! Shafei maintains there 

*A dram and a half ; also u coin of that 
weight. 

t A Carat ; the twenty- fourth part of an 
ounce. 

JThis alludes to prohibitions against the 
use of the precious metals in certain articles 
of personal ornament an*l household furni- 
ture, wfeich have been at various times 
issued by the Prophet and his followers as 
checks upon luxury (See Abominations.) 



is no Zakat upon the gold or silver orna- 
ments of women, nor upon rings worn by 
men, the use of which is allowable, and 
which are therefore the same in this respect 
as clothing or articles of apparel The 
argument of our doctors is, that the cause 
of the obligation to Zakat still continues in 
j the present case : moreover, articles of 
' gold and silver do, in their own nature, 
afford an argument of increase in the sub- 
ject, since these metals are brought into use 
principally for the purpose of facilitating 
exchanges by traffick, which affords an 
argument of increase ; a-nd it is the virtual 
and not the actual increase in any subject 
that creates the obligation to Zakat upon it ; 
contrary to the case of articles of apnarelt, 
which afford no argument or probability of 
increase. 

Sect. Ill Of the Zakat of personal 

Chattel Property * 

Zakat due upon all merchandise ZAKAT 
is due upon articles of merchandise, of 
whatever description, where the v.ilue 
amounts to a Nisab either of gold or silver, 
because the Prophet ordained that articles 
of merchandise should be appraised, and 
that a Zakat be paid on the same, in the 
proportion of five Dirms upon every two 
hundred,! as the proprietor has prepared 
and keeps them with a view to increase, so 
that they resemble cold and lilver, which 
the law holds to be kept for the same 
purpose ; and, as Zakat is due upon the 
latter, i is in the like manner due unon the 
! former : but the intention of trade in these 
articles is made a condition, in order that it 
may be ascertained that they are kept with 
a view to increase. 

Mode of ascertaining the Nisab of mer- 
chandise. MOHAMMED says that, in estimat- 
ing the value of articles of merchandise 
with a view to the imposition of Zakat upon 
them, they .should he resolved into such 
Nisal-jo as may be most advantageous to the 
poor ; t|ius if, in valuing an article Hy Dirms, 
it would amount to a Nisab of silver, and in 
valuing the same by Deenars, it would not 
amount to a Nisab of gold, it must be esti- 
mated by Dirms ; and, vice versa, if its value 
should appear to amount to a Nisab of gold, 
it is to he estimated by Deenars The com- 



*In the original, personal chattels are 
expressed by the terms Rakht and Mata, of 
which it is not easy to give any literal trans- 
lation ; they express, in general, all articles 
which appertain to personal estate or effects 
[Mall : articles of gold and silver, it is 
true, do also' fall under this general descrip- 
t ; on of Rakht and Mata ; but they are intro- 
duced tinker a different head, as the laws of 
Zakat, with respect *o them, .are of a pecu- 
liar nature, and such as <Jo not affect or 
apply to other articles of personal property. 

fTo wit, at the rare of two and an half 
per cent. N 



BOOK I. CHAP. IV.] 



ZAKAT. 



pilcr of the Hedtya observes that there is 
one opinion recorded from Haneefa to the 
same effect. Mohammed again, in the Mab- 
soot, has said tnat the proprietor of the arti- 
cle has it in his option to estimate it at what- 
ever species of Nisab he pleases, because 
gold and silver are standards, and in esti- 
mating the value of effects are both equally 
proper. It is recorded as an ooinion of Aboo 
Yoosaf, than an article should be estimated 
by that with which it was purchased : thus, 
if it has been purchased with Dirms, it is to 
he appraised in Dirms ; and if with Deenars 
it is to be appraised in Deenars : and if it 
should have been purchased with any other 
than either of these, it is to be estimated in 
money of the most general currency. It is 
on the other hand recorded, as an opinion of 
Mohammed, that vhatevcr the purchase may 
have been made with, the estimate is to be 
in current money, as above, in the same 
manner as that of property forcibly seized, 
which is thus estimated in all cases. 

Property not exempted by an intervening 
defect in it.lF a Misabbe complete in the 
beginning of the year, and also at the end, 
Zakat does not drop on account of its having 
been defective at any time within that period- 
because it is difficult to ascertain its com- 
pleteness through the intermediate space; 
moreover, in the commencement of the year 
its completeness is requisite, in order to th' 
establishment of the cause of obligation, and 
so also the close of the year, in order to 
Zakat becoming due ; but it is not so within 
the interval. 

Other chattel nroporfvmav bf unitfd with 
money or bullion to form a Nisab. THE 
value of personal effects, or other article, 
may be united with sold or silver ; that is to 
say, if (for instanre) the proprietor should 
have effects estimated at the value of one 
hundred Dirms, and also one hundred >irrm 
in money .the value of th<> effects, as a'bove, 
must be added to the one hundred Oftms, so 
as that the whole may make one Nisah : an d 
Xakat is due thereon, because the obligation 
to Zakat, in such prooerty, is occasioned by 
the circumstance of it* beinfr kent with a 
view to traffic*, although the shape in which 
it is so kept he different with respect to earn 
ot the two descrintions of it, tr^ck in chat- 
tels berncr established by the act of the indi- 
vidual but that in money by the construction 
of the law. 

And also silver with goM. Go L panH silver 
may m the same manner be united, both 
beinijr in effect of one nature, as standards of 
estimation, and the possession of each equally 
causing the obligation to Zakat. 

GOLD and silver may be united, according 
to Haneefa, in respect to their value;* but, 
arcordmcr to the two disciples, in rwect to 
their parts : and t^e consequence of this dif- 



t0 s ? y< may bc both ^solved into 
k ,u tby the rcs P^ctive weight of 
but by a ereneral valuation n 



ference of opinion is, that if a man were 
possessed (for instance) of one hundred 
Dirms in silver, and five Miskals of gold (the 
value of which would amount to one hundred 
Dirms), this person would be subject to Zakat 
according to Haneefa, but not so according 
to the disciples ; for these latter sty that, in 
ascertaining the Zakat of qold^ and silver, 
regard is to be had to the quantity only, and 
not to the value ; whence it is that Zakat is 
not due upon a vessel of silver, where the 
weight is short of two hundred Dirms, al- 
though the value should be to that amount, 
or beyond it: Aboo Haneefa, on the other 
hand, contends that cold and silver are 
united with each other on account of their 
v omo?eneity, which is established between 
them in respect to their value, but not in re- 
spect to their substance. 



CHAPTER IV. 



OF THE LAWS RESPECTING THOSE WHO COME 
BEFORE THE COLLECTOR. 

Declarations rfioectin* property, when 
miflf UP/WI oath, to be credited. IF a person 
come with hii property* before the collector 
IT! say, "ft is so many months since this 
property has come into my possession, and a 
veir has not vet elapsed ;" or, "I am in- 
oVhted so and so" and make oath of the 
same, the collector is to credit him, and 
must not exact anvthincr, because this person 
*tand* as a H^nclant denvinor his obligation 
to Zakat : and the declaration if a defendant, 
when supported bv his oath, must be ere- 
^ited. So alo, if a nerson were to declare 
that he had atreadv paid the Zakat upon such 
property to a former collector, his declara- 
tion must be credited, because the collector, 
in taVHg Zakat, act* mrelv as a Trustee, 
and the Zakat comes to and remains with 
him as a denosit : and the declaration of the 
above nerson amounts onlv to his having de- 
noqited the trust in its proner place, and this 
is to be cr^rliteH, provided there should have 
Keen another collector there within the year ; 
hut if. on thp contrary, there should have 
heen no other collector on that station within 
th( current y?*r t the affirmation and oath are 
not to bc credited, since, in this case, the 
faUohood i manifest. And, in like manner, 
if the nroprietor were to declare that he had 
alr^dv en id the Zakat unon such property 
in his own city, by having there bestowed 
the same nron*the poor, his declaration must 
he credited, because a proprietor, whilst in 
hi* own Hty, is entrusted with the oayment 
and distribution of the Zakat upon his oro- 
perty, and he continues to be so until he 
comes forth and brings his property before 
the collector, whenthe authority for lewinf 



Meaning merchandise, but not 8attle ; 
and the word bears the same sense througk- 



ZAKAT. 



(VOL. I. 



Ztkat rests with the latter, as the property ' to exact from him what is usually exacted 

and the proprietor do both then come within ' - r -'---- --** j -._---. 

his jurisdiction.* In short, in all these four 
instances, the declaration of the proprietor 
is to be credited. And in the same manner 
the declaration of a proprietor, respecting 
Zakat upon cattle, is to be credited in the 
three first instances, but it is not so in the 
fourth, although he should confirm his at 
testationby an oath. Shafei maintains that 
it is to be credited here also, as the pro- 
prietor appears, by the tenor of his declara- 
tion, to have rendered the right duly to the 
claimant. In opposition to this, our doctors 
argue that the right of exacting the Zakat 
upon cattle appertains solely to the Sultan, 
and the pr6prietor is not at liberty to pre- 
clude the Sultan's right ; contrary to the 
case of property of other nature, such as is 
termed, in the language of the law, Batena 
[internal, or domestic], the rendering of the 
Zakat upon which is committed to the pro- 
prietor. It is to be observed that some have 
said, respecting cattle, that the Zakat which 
was* paid by the proprietor himself in the 
first instance is the true obligatory Zakat, 
and that whatever may be afterwards ex- 
acted of him under that denomination, is 



consequently an oppression ; whilst others 



consequently an uppicaaiui* , wmioi, v^ni^io . ana noining L 

maintiin that this latter is to be considered I object of taxati 
as the obligatory Zakat, and the former to 
be held as an act Nifl, or gratuitous ; and 
this last doctrine is approved. Now a ques- 
tion here arises, as the assertion of the pro- 
prietor is to be credited, whether he ought to 
produce his writing of discharge [voucher] 
or not ? -Mohammed, in the Jkma Sagheer, 
has not required this as a necessary condi- 
tion ; but in the Mabsoot he has made it a 
condition ; and this latter opinion (according 



of aliens, without paying any regard to his 
declarations in those points in which the 
declarations of a Mussulman or Zimmee are 
to be credited, although he should swear to 
the same, excepting where he declares, con- 
cerning his female slaves, that those slaves 
are his Am-Walids ; for, in all other species 
of property, his affirmation is not worthy of 
attention, because the impost which is thus 
levied upon him is not in fact Z akatvt but 
rather a contribution exacted as a return for 
the protection he receives, and which is re- 
quisite for the safeguard of whatever he may 
possess ; it is therefore proper to take from 
him the impost usually levied upon aliens, 
except where he declares, as above, with 
respect to his female slaves, that they are his 
Am-Walids, which declaration must be at- 
tended to and credited ; because, if an alien 
were to declare, concerning any other per- 
sons who accompany him, that "they are his 
children," his declaration is approved ; and 
so, in like manner, with respect to his female 
slaves, as the rights of the Am-Walid are 
derived from the establishment of the child's 
descent, and consequently the female slav 
do not appear to be transferable property ; 
and nothing but transferable property is an 



Proportion levied upon merchandise. 
FROM a Mussulman is taken the fourth of 
the tithe of his property; and from a Zimmee 
the half of the tithe ; and from an alien the 
tithe ; Omar having instructed his collectors 
to this effect. 

Zakat to be levied on the property ofaliens t 
to the value of fifty Dtrmv, or upward*. IF 
an alien should come before the collector with 
property to the amount only of fifty Dirms, 



to a tradition of Hoosn) is that of Abpo | nothing whatsoever is to be exacted" of him, 
Haneefa. The principle of this doctrine is, | except \ 



that as the proprietor pleads a discharge, 
and as he possesses a voucher of such dis- 



r . where aliens exact contribution upon 

an equally srnall property of Mussulmans ; 
in whi/A case a similar impost must be laid 



charge, he ought consequently to produce it; | upon thi,s amount, the property of an alien, 

whilst the principle of the doctrine main- ' * -..-. / i- .__ 1.. 

tamed in the Zahir-Rawayet is that as one 
writing resembles another writing, they are 
not admitted as proofs. 

Declarations of Z \mmees to bs credited. 
IN whatever instance the declaration of a 
Mussulman, with respect to Zakat, is to be 
credited, that of a Zimmee f must be so like- 
wise, because a Zimmee is subject to double 
the impost of a Mussulman : and hence all 
the conditions which are to be regarded, with 
respect to the property of the latter, must be 
equally so with respect to that of the former. 

But not those of A/tens. If an alien ap- 
pear before the collector of the Sultan with 
articles of merchandise, it behoves that officer 



,*This comment upon thgtlaw (as in many 
other instances) c has reference to some local 
customs or circumstances which cannot ' now 
be ascertained. 

An infidel subject of the Mussulman go- 
vernment. 



because what is taken from aliens is merely 
in the way of reciprocity ; contrary to the 
case of Mussulmans or Zimmees, as what is 
levied upon them is in fact Zakat, either 
single or twofold, whence it is indispensable 
that the property with them amount to a 
Nisab. This is the doctrine of the Jama 
Sagheer. In the Mabsoot, under the title 
Zakat, it is written that if the property of 
an alien should be small (that is, short of a 
Nisab), nothing whatever is to be exacted of 
him, let the custom of aliens, in this respect, 
be what it may, because a proportion of pro- 
perty not amounting to Nisab is invariably 
to be considered as Afoo, or exempt ; and 
also, because a trifle of this sort is not sup- 



Slaves who have borne children to him. 

f Because, as being an act of piety, an 
infidel is held to be incapable of paying 
Zakat ; wherefore it cannot be considered in 
that sense, although it be exacted under that 
denomination 



BOOK I. CHAP. IV.] 



fcAKAT. 



IS 



posed to stand in need of the State's protec- 
tion, as travellers must necessarily carry 
with them small sums for the purpose of 
expenses, and robbers do not pay any atten- 
tion to such trifles, not considering them ob- 
jects of their pursuit. 

Proportion to be levied upon the property 
of aliens. Iran alien come before the col- 
lector with two hundred Dirms, and it be 
uncertain what tax foreigners levy upon a 
similar property of Mussulmans, in this case 
tithe is to be taken ; and if it be known that 
foreign states exact only a twentieth or a 
fortieth, a similar proportion is to be taken; 
but if it be known that they take the whole, 
yet the Mussulman collector must not act 
accordingly, because this is an act of rapine. 
And if it be known that they take nothing of 
the Mussulmans, it is then proper that no- 
thing be taken from them, in order that the 
Mussulman merchants, travelling into foreign 
countries, may remain free of impost ; and 
also, because where foreign states observe 
kindness towards Mussulmans, and exact 
nothing of them, it is requisite that nothing 
be exacted of them in return, as it behoves 
the Mussulmans to preserve a character of 
benevolence towards all men. 

Must not be exacted repeatedly. IF an 
alien come before the collector, and the 
latter exact the tithe of him, and he should 
again pass near the station of the collector, 
yet nothing more is to be exacted till the 
completion of the Hawlan-Hawl, because, if 
the tithe were to be repeatedly levied within 
the year, the property would be annihilated, 
and the impost is laid for the purpose of 
protecting the property; moreover, the pro- 
tection which is first granted continues until 
the beginning of a new year, when the Aman, 
or protection, commences de novo, because it 
is not permitted to an alien to remain in a 
Mussulman territory beyond the space of a 
year. But the tax may be aqain Demanded 
of him at the expiration of the second year, 
as this does not tend to annihilate his pro- 
perty. What is here advanced proceeds upon 
a supposition that the alien has not returned 
into his own country within the period of 
the year, after this payment of the tithe, as 
aforesaid; but if he should return thither, it is 
to be again exacted of him upon his re-enter- 
ing the Mussulman territory, even though he 
were to go there on the very day of payment, 
and to come again into the Mussulman terri- 
tory on the same day, because every time he 
thus returns into the Mussulman territory, 
he returns under the virtue of a new protec- 
tion ; moreover, the repetition of exaction 
uponhisreturn cannot be considered as tend- 
ing to annihilate his property, since on every 
return hi is supposed to acquire a profit. 

takat-tithe to be levied on wine. If a 
Zimmee or infidel subject, pass the station 
of a collector with wine and pork, the col- 
lector is to levy a tithe upon the former arti- 
cle, but not upon the latter. B v levying a 
tithe upon the wine, is to be understood (not 
upon the actmal article, but) upon the esti- 



mated value of the article. The distinction 
here made between wine and pork, is taken 
from the Zahir-Rawayet. Shafei says, that 
nothing whatever should be levied on either 
p^;k or wine, neither being legally subjects of 
estimation. ZifTer, on the other hand, argues 
that it should be levied equally upon both, 
as both do actually constitute property among 
Zimmees. Aboo Yoosaf also says that the 
tax should be levied uponboth, pr' viewed that 
they be found together upon the Zinimee ; 
but possibly he is here to be understood as 
making the pork an appendage to the wine, 
whence it is that he adds "If the Zirnmee 
were to come before the collector with either 
wine or pork, singly, the tenth would be 
levied on the former but not upon the 
latter." The reasons upon which the Zahir- 
Rawavet proceeds, in this case, are twofold ; 
FIRST, the estimated value of a thing which 
falls under the description of Zooatal-Keem 
stands as the ident-cal thing itself, and pork 
is of this class.; whereas the value of an 
article belonging to the class of Zooatal Imfel 
does not stand in place of the identical 
article*?, and wine is of this description ; 
SECONDLY, the right of exacting the tenth is 
vested in the collector in consequence of the 
protection afforded by the state ; and a Mus- 
sulman has a right to take measures for the 
preservation of his wine, for the purpose of 
making vinegar of the same, whence it is 
also lawful for him to protect the wine of a 
Zimmfe ; whereas he is not permitted to take 
any of his pork, insomuch that if a Zimmee, 
being possessed of pork, were to be converted 
to the faith, it would be incumbent on him 
to destroy it or throw it away ; and a Mus- 
sulman not being allowed to take care of his 
own pork, it follows that he is not competent 
to the protection of the pirk of others ; and 
hence the state not being considered as 
affirdins protection to the pork of a Zimmee, 
no tax can be levied upon it. 

IF a boy or a womin of the Toghleb tribe 
pass the station of a collector, with property, 
nothing is to be taken from the former, but 
he must exact from the latter the usual pro- 
portion of oersons of that tribe, according to 
what is said concerning the Zakat of cattle. 

IF a person come to ths collector with 
on< hundred Dirms, declaring that he has 
another hundred at home, and that the Haw- 
lan-Hawl has elapsed, yet the collector is not 
at liberty to take Zakat either upon those 
hundred or upon the other ; because the one 
does not come under his protection, and the 
other r, short cf a Nisab, 

No Zakat to be levied on Bazat or Mozari- 
bat property IF a person come to the col- 
lector with two hundred Dirms, which are 
with him as a Bazat, the collector must not 
impose any Zakat upon it, because this per- 
son is not empower JL\ by the actual proprietor 
to pay Zakat ; and so also, \f tha^property 
were in his hands in the way of Mozaribat.- 
This is the doctrine of the two disuples ; 
and Haneefa has also subscribed to it; and 
the reason upon 'vhich it is founded in that 



14 



ZAKAT. 



I. 



the Mozarib is neither the actual proprietor 
nor the representative of the proprietor, with 
respect to the payment of Zakat : wherefore 
Zakat is not to be required, except where the 
Mozarib, by the nature of the contract, de- 
rives such a proportion of profit from the 
capital stock entrusted to him as amounts 
to a Nisab ; in which case a proportionable 
Zakat must be levied, as he is the actual pro- 
prietor of such proportion. 

Mazoon slaves subject to it. IF a Mazoon 
slave, not indebted to any person, come be- 
fore the collector with two hundred Dirms, 
the Zakat mustbe levied. Aboo Yoosaf says, 
that it is not known whether Haneefa ever 
retracted this opinion, and delivered another 
(that the collector should not levy Zakat upon 
a Mazoon) or not ; but from his subscribing 
to the opinion of the two disciples in the 
preceding case (to wit, that no Zakat is to be 
levied upon a Mozarib), it may be presumed 
that he has also agreed that none is to be 
levied upon a Mazoon, as he is not the pro- 
prietor, but his master, the 1 former having 
only a power of transaction, with respect to 
the 'property in question, so that he stands in 
the same predicament with a Mozarib. 
Some have said, that between a Mazoon and 
a Mezarib there is this difference, that the 
former transacts with the property on his 
own account, and hence is subject to its obli- 
gations ; for, as he cannot have recourse to 
his master, but may be sold, in order to the 
fulfilment of such of its obligations as he is 
legally liable to, it follows that he does stand 
in need of protection for it upon his own 
account ; contrary to a MozaribT for he man- 
ages the Mozaribat stock in the manner of 
an agent, and hence whatever may attach to 
him in the obligations thereof he takes again 
from the proprietor, wherefore the owner of 
the property is the person who requires pro- 
tection for it : and there thus appearing an 
essential difference between a Mazoon and 
a Mozarib, no inference can be drawn of 
Haneefa 1 s opinion respecting the former from 
what he has conceded concerning the latter. 

Unless accompanied by their owner. IT 
is to be observed that if the master of the 
Mazoon accompany hm, the collector must 
take the Zakat (not from the Mazoon, but) 
from the master, he being the actual pro- 
prietor ; the Zakat, therefore, is to be taken 
from him, except where it appears that the 
slave is indebted to such an amount as com- 
prehends the property in question; in which 
case no Zakat whatever can be required of 
the master, since (according to < Haneefa) the 
master, in this circumstance has, in fact, no 
actual property in the Mazoon's hands : 
and (according to the two disciples) the right 
of another is connected with the property, 
namely, the debt and consequently no Zakat 
is due upon it, they holding that debt upon 
a Property forbids the exaction of Zakat. 

Ira merchant, Keing in a country where the 
Schismaticks prevail, go to a collector of the 
SchismaSicks, and there pay the Zakat upon 
his<property, and afterwards come before a 



collect tor of the Orthodox, the latter may 
again exact Zakat of him, because in going 
before a collector of the Schismaticks, and 
there paying Zakat, he was in fault. 



CHAPTER V. 

OF MINES AND BURIED TREASURES. 

Distinctions. THERE are three legal terms 
which particularly belong to these subjects, 
and which are employed for the use of dis- 
tinction;Madin, Kanz, and Rikaz: by Madin 
is understood the place in which the ore or 
metal is naturally produced ; by Kanz, trea- 
sure. or other property, buried in the ground;* 
and Rikaz applies equalfv to either, to Madin 
literally, and to Kanz metaphorically. 

Mines subject to a Zakat of one-fifth. IF 
there be discovered, in Kherajee or Ashooree 
lands (that is, lands subject to tithe or 
tribute), a mine of gold, silver, iron, lead or 
copper, it is subject to a Zakat of one-fifth, 
according to our doctors ; and this Zakat is 
termed Khamg,f Shafei has asserted that 
nothing whatever is due upon a mine, because 
it is free to the first finder indifferently, and 
is therefore the same a* game ; but yet if, 
the metal be produced from the nnine, it is 
subject to Zakat independent of Hawlan- 
Hawl, that having been constituted as a con- 
dition of Zakat merely to afford time for in- 
crease, whereas here the identical subject 
itself (the metal) is increase of property ; 
wherefore the lapse of Hawlan-HawI is not in 
this instance required. The arguments of 
our doctors, on this subject, are twofold ; - 
FIRST, the ordinance of the Prophet, who 
directed that upon Rikaz there should be 
imposed a fifth ; and the term Rikaz applies 
to mines, as was already demonstrated : 
SECONiy.Y, hfc mine, as being discovered in 
tithe of tribute lands, must at one period have 
been prOpertv of the infidels, and after- 
wards have fallen into poseession of the Mus- 
sulmans by conquest, wherefore the whole 
falls under the description of Ghaneemat. or 
plunder ; and one-fifth is due upon plunder : 
contrary to the case of game, the property 
in which cannot be traced to any antecedent 
proprietor. 

OBJECTION. If the mine be thus resolved 
into plunder, it should follow that, as such 
the products of it is the common property of 
all the w?rriors. 

REPLY. The property of the warriors is 



This is a common practice in all parts of 
Asia. Treasures are hidden in the ground 
on the commencement of a war, or other 
troubles ; and it frequently happens that, the 
depositors perishing, the treasure remains 
concealed, perhaps, for manv years, till it be 
discovered by accident, and at a time when 
no legal claimant can be found. 

tLit<5rally, a fifth. It is elsewhere trans- 
lated double tithe. 



BOOK I.-CHAP. V.] 



ZAKAT. 



established in the mine constructively, in 
virtue of the establishment of their property 
in the surface of the territory : but the dii- 
coverer of the mine is the actual acquirer of 
it ; wherefore the property of the warriors is 
established in one-fifth, their right being 
only constructive; and that of the discover is 
established in the remaining four-fifths, as 
his right is actual ; whence it is that thote 
four-fifths are reserved to him. 

Case of a mint within a house. IP a person 
discover a mine within the precincts of his 
own habitation, nothing is due upon it, ac- 
cording to Haneefa. The two disciples hold 
that a fifth is due upon that also, in con- 
formity to the traditionary ordinance already 
quoted, because that applies equally to the 
present case. Haneefa argues upon this, that 
a mine is a constituent part of the land in 
which it lies, as being supposed to have been 
originally created with it, and nothing being 
due upon the ground generally, i* follows 
that nothing is due upon anv particular por- 
tion of it (such as the mine, for instance), 
because a part does nof differ from the whole: 
contrary to the case of a Kan?, which is no 
constituent nart of the soil, as not having 
been oricrinnllv created with it, but deposited 
there bv some person. 

Or in land* which are private firopertv 
TF the said mine be discovered, not actually 
in the house of the' finder, but in lands, suh- 
iVt either tr> the tribute or tithe, which are 
his own especial and exclusive property, in 
this case^there are two opinions recorded of 
Hanecfa's doctrine ; one, that no Zakar what 
ever is due. anv more than if rhr mine had 
been discovered within the house of the 
finder ; another, that a fifth is Hue unon it : 
the former of these opinions is mentioned in 
the Mahsoot. and thp latter in the Tama Ras- 
heer : and the principle upon which the latter 
opinion proceeds is, that between a house and 
lands there is a manif^t rlistinttion, because 
the ground on which a house stanrf* fc not 
supposed to be any wav proHicfM* of the 
fruits of the earth (whence it is that no fqy 
of anv kind is levied upon it, insomuch that, 
if n date-tree were hv accident to arow within' 
x dwelling, and to nrodt?re fruit, vet nothi-r 
is due upon the fruit), whereas Innd*. on *hr 
contrarv, as being Productive, are not thus I 
exempted from tithe and tribute, and mn- ' 
seqtientlv a fifth is due upon all mines which ! 
are found in uVm. ! 

And of buried treasure* TF a p^on ^nrl 
* * a . nz ' or deposit, of buried treasure a 
fifth is due upon it according fo th<- o 
of an the doctors, in confnrmitv to the 
tionarv ordinance already quoted, the e 
SIOP there used fPiVa/f apnlvm* to 
It is to be observed, however, that ite 
treasure in question be coin, bparfnp the im- 
pression of Musmlman monev (such a the 
words of the CreeH*\ the Kan* stands as 

MeSmy the Kulma; or MWulman Con- 
fession of faith, "There is no God, but one 
Uod, and Mohammed is thePronhet of God " 



a Lookta, or trove-property, the laws con- 
cerning which are explained elsewhere - 
yet, if it bear the impression of infidel coin- 
age (such as the image of a gaint or idol), 
a fifth is due upon it in all cases, that is 
to say, whether a person may have found 
the same in his own grounds, or in those 
of another, or in common lands which are 
not the property of any person ; and the 
fifth is thus due upon the authority of the 
traditionary ordinance to which we have iust 
referred. It is here proper to remark, that 
if the treasure be found in common land, 
four-fifths of it appertain to the finder, as 
having recovered it, because the other war- 
riors had no information concerning it, ind 
of course no share in the discovery ; and con- 
sequently he has an exclusive right to it : 
and the same rule obtains if it be found in 
appropriated land, whether such be his own 
property, or belonging to another (according 
to Aboo Yoosaf), because the claim is estab- 
lished in virtue of salvage, or recovery, and 
the treasure has been recovered by the finder. 

Mohammed and Haneefa maintain, on the 

contrarv, that the treasure is the property of 
him upon whom the Imam had beitowed the 
lands, originally, at the period of subjuga- 
tion, who is termed the Mokhuttut-le- 
hoo, or first grantee, upon the principle that 
whoever has the first exclusive property 
in a soil is the true proprietor of whatsoever 
may be contained in it, although he should 
not have obtained visible possession thereof, 

the same as where a person catches a fish 

with a peart in its maw, in which case he 
becomes the proprietor of the pearl, although 
he has not Actually laid his hands upon it, 
nor knows of its being in the fish's belly.* 
And it is further to be observed, that if the 
first qrantee should have sold his lands, yet 
he Hoes not forfeit his right to any Kanz, or 
buried treasure, which may be afterwards dis- 
covered there, as that does not form a part 
of the soil, like mines, which as being a con- 
stituent portion of it, upon a transfer by 
snip become the property of the purchaser. 
And if the first grantee be unknown, in this 
cas-?, according to the opinion of the learned, 
the four-fifths go to him who was the first 
known proprietor from the period of the 
establishment of the Mussulman faith, that 
is to sav, him bevond whom no antecedent 
proprietor can he discovered And if the 
treasure should consist of coin, the impres- 
sion of which is so far effaced as to render it 
doubtful whether it be infidel or Mussulman 



*This is a case of some curiosity, and 
affords an instance (amone a multitude of 
others) of points of law adduced in elucida- 
tion of passages to which thev do not appear 
to have an immediate reference. From the 
above it appears, that if a man were to catch 
a fish with a iewel in its belly, and wereto 
sHl the fish (not knowing whit it contained). 
he would have a right to recover the jewel of 
the purchaser. 



16 



ZAKAT. 



[VoL. I. 



money, in this case according to the Zahir- 
Rawayet) it is to be considered as of the for- 
mer class: some however, have observed that, 
in modern times, it is held as Mussulman 
coinage. 

Of mines or buried treasure found in a 
foreign country. IP a Mussulman go under 
protection into a foreign country, and there 
find a Rikaz within the house of an infidel, 
whether it be a Madin or a Kanz, let him 
deliver the same up to the proprietor, in 
order that treachery and breach of faith may 
not be induced ; because whatsoever is in that 
country belongs of riqht to the people of it : 
but if he were to find the Rikaz in the open 
country or desert, it belongs to him, no per- 
son having any exclusive riuht in it so 
as to make his appropriation of it an act of 
treachery and here the fifth would not be 
due ; as treasure, thus found, docs not bear 
the construction of plunder, the person who 
finds it standing as a thief, and not as a 
warrior. 

Precious stones not subject to impost. No 
fifth is due upon turquoises, such as are 
found in mountainous places ; because a tur- 
quoise is a stone ; and the Prophet has said, 
"Upon stones there shall be no KHAMS." 

Quicksilver subject to impost of a fifth, 
but not pearls or amber. Upon quicksilver 
there is clue a fifth, according to Hancefa, in 
his last opinion recorded upon this subject : 
contrary to the opinion of Aboo Yoosaf. 
Upon pearls and amber there is no fifth due, 
according to Hanecfa and Mohammed. -Ahoo 
Yoosaf maintains that upon those, as well 
as upon all gems procured from the sea, there 
is a fifth ; because Omar usf jl to levy a 
fifth upon rmber. Haneefa and Mohammed 
argue, that the depths of the sea do not 
come under the description of parts subju- 
gated by conquest ; and hence anything 
procured thence cannot be defined plunder 
although it shouM consist of gold or silver ; 
and the case of Omar levying a fifth upon 
amber existed only where that article was 
cast up by the sea upon th? shores ; and 
here also they coincide that the fifth may be 
levied. 

IF a penon find, in common ground, a 
deposit of chattel property, such as vessels 
or cloths, the same is the property of the 
finder ; and there is a fifth due upon it, be- 
cause this comes untk-r the description of 
plunder, the same as gold or silver. 



CHAPTER VI. f 

OF ZAKAT UPON THE FRUITS OF THE EARTH. 

A tithe due upon the product of lands 
watered by natural means. UPON every- 
thing produced from the ground there is due 
a ''tenth, or tithe, which Is termed Ashar ; 
whether the soil* be watered by the annual 
overflow of great rivers (such as the Oxus 
and ShVhoon). or by periodical rains; except- 



ing the articles of wood, bamboos, and grass 
which are not subject to tithe This is accord- 
ing to Haneefa. The two disciples say that 
tithe is not due except upon such things as 
are permanently productive,* which are sub- 
ject thereto, provided the product amount to 
five Wusks, or sixty Saas ; and they further 
hold that herbs are not subject to tithe. From 
this it appears that the difference of opinion 
between Haneefa and the two disciples exists 
with respect to two points in particular ; 
FIRST, the specification of the quantity as a 
condition ; SECONDLY, that of permanency in 
the subject. The arguement of the two disci- 
ples, with respect to the former of these, is 
twofukl ; FIRST, the Prophet has ordained 
that there should be no Zakat on less than 
five Wusks : SECONDLY, tithe being as alms, 
to render it obligatory it is requisite that 
some Nisab be ascertained and established, 
so as to confine the contribution to the rich. 
The argument of Haneefa is that the Pro- 
phet ordained that an ASHAR should be held 
due upon everything produced from the 
ground, which ordinance is general in its 
application, and without any specification of 
quantity ; and, with respect to the ordinance 
quoted by the two disciples, it is to be taken 
as applying solely to articles of commerce ; 
that is to say that "there is a ZAKAT upon 
those articles, as MERCHANDISC, where the 
quantity amounts to five WUSKS-;" because, 
in the time of the Prophet, fruits were sold 
by the Wusk, and the value of a Wusk was 
estimated at forty Dirms, so that the value 
of five Wusks was two hundred Dirms, the 
amount of a Nisab in estimated property : 
and, with respect to their second argument, 
the obligation to titho upon the fruits of the 
earth is connected with what it yields only, 
without respect to the proprietor (whence 
it is that a tithe is due upon the product of 
Wokf-Iands), how, therefore, should any re- 
gard be had to the description of the pro- 
prietor/as beincr rich? And hence also it is that 
Hawlan-Hawl is not requisite in the present 
case, that, having been established for the 
purpose of ascertaining increase ; and the 
fruit of the earth does itself come under this 
description The argument of the two disci- 
ples, with respect to the second point is, that 
the Prophet has ordained that, "upon vege- 
tables (that is, herbs) no alms are duo ;" 
and by alms is here to be understood tithes ; 
as Zakat is not forbidden here, since it is due 
provided the property amount to a Nisab. 
In reply to the*e observations, the arguments 
of Haneefa are twofold ; FIRST, the tradi- 
tion before quoted ; and, with respect to the 
ordinance adduced by the two disciples, it is 
to be observed, that by the term Sadka 
[alms] there mentioned, is to be understood 
such alms as are taken by the collector, but 
not that contribution which falls under the 
denomination of Ashar ; and in this Haneefa 
also agrees, that the collector is not to take 



*Such as fruit-trees. 



BOOK I. CHAP. VI.] 



ZAKAT. 



17 



tithe from those articles ; SECONDLY, articles 
of product are often cultivated which are 
not of a permanent nature, such as melons 
and cucumbers ; and these are the increase 
of the earth : and the cause of obligation to 
the payment of Zakat upon Ian d is increase ; 
whence it is that the land is subject to tri- 
bute, and therefore tithe is also due : but, 
with respect to the articles of wood, bam- 
boos, and grass, the ground is not tilled or 
prepared for the cultivation of them ; nay 
it is usual to clear them away; yet, if a 
person were to till the ground with a view 
to the culture of such articles, his land 
would be subject to tithe. 

And an half tithe upon the product of 
lands watered by artificial means. LAND 
watered by means of buckets,or machinery, or 
watering camels, are subject to half tithe,* 
according to Haiieefa and the two disciples : 
the latter, however, coincide in this, under 
the restriction, conditional, that the product 
be of a permanent nature, and that the 
quantity of product amount to five Wusk^s ; 
whereas Haneefa does not specify any such 
condition. The reason why such lands are 
made subject to half tithe only is, that the 
expense of tillage greatly exceeds that of 
lands watered by rains, or by the periodical 
overflow of great rivers. 

Rule respecting lands which partake of 
both descriptions. WITH respect to lands 
watered a part of the year by rivers and a 
part by labour, in regulating their propor- 
tion of import, regard" is to' be had to the 
greater portion of the year ; that is to say, 
if the land be such as is watered by rivers 
for the greater part of the year, the impost 
is a tithe ; but, if it be watered for the 
greater part of the year by labour, it is only 
half tithe, or a twentieth. 

ABOO YOOSAF has said that, upon every 
article the amount of which is not estimated 
by Wusks (such as saffron and cotton), tithe 
is due, provided its value be equal totjiat of 
five Wiuks of an article of the lovuesj value 
so estimable (^uch as millet in the present 
tunes) ; because articles, the quantity of 
which the law does not hold to be estimable 
by Wusks, can have their Nisab ascertained 
only by estimation of the value ; as is the 
ca-e with articles of merchandise. Moham- 
med, on the other hand, alleges that tithe 
is due upon those articles, provided their 
quantity amount to the number five of the 
highest standard of ascertainment of quan- 
tity with respect to each ; for instance, cot- 
ton is weighed by Mans and Ham Is each 
Haml containing three Mans ; a Nisab of 
cotton therefore consists of five Hamls ; 
saffron, on the other hand, is weiehed by 
Dirms Astars, Rutls, an d Mans fan d the 
latter being the greatest of these, a Nisab of 
saffron, consequently, consists of five Mans 
wei g ht.-~The reason upon which Mohammed 
proceeds herein i^ that the Wusk is con- 
stituted the standard of estimation of Nisab 



*To wit, a twentieth of the whole product. 



in grain & c. only on account of its being 
the largest standard by which their quan- 
tities can be ascertained ; and the same 
principle operates with respect to all other 
articles. 

A tithe due upon honey : TITHE is due 
upon honey where it is collected in tithe- 
lands. Shafei maintains that nothing is due 
upon honey, because that is an animal pro- 
duction, the same as silk, which being tithe- 
free, honey is so likewise. The arguments 
of our doctors are twofold : FIRST, the Pro- 
phet ordained that honey should be subject 
to tithe ; SECONDLY, bees collect their honey 
from blossoms and fruits, which articles 
being subject to tithe, it follows that honey, 
which is extracted from those, must be so 
likewise : contrary to the case of silk worms, 
because those feed upon leaves of trees, 
which are not subject to tithe. Haneefa 
holds tithe to be due upon honey, whether 
the quantity be great or small ; he not re- 
garding Nisab as essential in this article. 
Aboo Yoosaf has reported it as an opinion 
of Haneefa, that the Nisab of honey is to 
be ascertained by estimate, according to his 
general tenet upon the subject of Zakat ; 
and he further says, that nothing is due upon 
honey, unless the quantity amount to ten 
Kirbs (a Kirb being fifty Mans), because 
this was the rule by which the trible of Syara 
paid tithe on their honey to the Prophet, 
Again, it is related as an opinion of Aboo 
Yoosaf, that a Nisab of honey consists of 
five Mans. According to Mohammed the 
Nisab in honey is five Sirks (a Sirk con- 
taining thirty-six Rutls), because the Sirk 
is the largest standard of quantity in honey, 
as the Wusk is in grain. And the same of 
sugar-cane ; that is to say, according to Mo- 
hammed, tithe is due upon sugar-cane where 
the quantity of sugar produced from it 
amounts to live Sirks. 

And upon wild honey and fruits :--HoNEY 
and fruits, collected in the wilderness, are 
subjects of tithe. This is the doctrine of the 
Zahir-Rawayet. It is related as an opinion 
of Aboo " Yoosaf, that nothing whatever is 
due upon such articles, because the occasion 
of obligation to Zakat is the land being of a 
productive nature, which is not the case in 
this instance.- The principle upon which the 
Zahir-Rawayet proceeds herein is, that all 
that is required to constitute land being pro- 
ductive, is the circumstance of its affording 
produce of any sort ; and produce does ap- 
pear in the articles above mentioned. 

And upon all the product of tithe lands, 
indiscriminately : TITHE is due upon all the 
produce of tithe-lands indiscriminately ; nor 
is any deduction to be made on account of 
the expense of men or cattle employed in 
tilling those lands, because the Prophet has 
ordained that dues should be different in 
proportion to the c^fference of expense, an4 
also that lands watered by rain shall J^e sub- 
ject to tithe and those watered by labour to 
half-tithe ; wherefore the deduction f ex- 
pense is needless. 



18 



ZAKAT. 



[VOL. I, 



And double tithe upon those lands tuhen 
held by Togltbees. UPON tithe lands, pos- 
sessed by persons of the TOQLIB tribe, a two- 
fold Ashar, or fifth, must be levied ; and in 
this all the doctors agree. It is recorded, 
however, as an opinion of Mohammed, that 
upon tithe-lands which may have been pur- 
chased by a Toglibee of a Mussulsman, a 
single tithe only should be levied ; he hold- 
ing that the imposition upon lands does not 
suffer any alteration in consequence of a | 
transition of the property. I 

Cases of transition of property in land ! 
subject to double tithe. IF a Zimmee, or in- i 
fidel subject, purchase land of a Toglibee, j 
from which double tithe had used to be col- i 
lected, the Zimmee must also pay double [ 
tithe upon it. In this all our doctors coin- ! 
cide, because it is lawful to require twice as | 
much of a Zimmee as of a Mussulman, , 
whence it is that, if such an one were to ' 
come before the collector with merchandise, | 
twice as much would be exacted of him as 
of a Mussulman. And the same rule obtains ! 
(that is to say, the same proportion of tithe 
continues to be imposed upon those lands) 
where a Mussulman purchases them of a j 
Toglibee ; or where a Toglibee, being the ! 
proprietor, becomes a Mussulman. Haneefa ' 
holds this opinion in all cases, whether the i 
land had originally belonged to a Toglibee, j 
or the Toglibee had purchased them of a \ 
Mussulman, for in either case the rule of i 
double impost continues, with respect to | 
them, where they are purchased by a Mussul- ; 
man, because he holds double impost upon 
those lands to have been already irreversibly 
established,* and, consequent^ that this 
incumbrance on the lands devolves to the j 
Mussulman purchaser along with the pro- i 
perty, in the same manner as obtains in the ! 
case of a sale of tribute-lands. Aboo Yoosaf 
maintains that, in the case here recited, a 
single tithe only is to be collected from the , 
Mussulman proprietor ; nor will the lands, j 
whilst in his possession, be subject to any ; 
further impost, since the only principle upon j 
which double tithe had been exacted of the i 
Toglibee was the infidelity of the proprietor; ! 
ancfthis, upon the devolving of the property ' 
to a Mussulman, is done away, Aboo Yoo. af, 
in the Kaclooree, has further said that (ac- 
cording to the Rawayct-Sahceh) the opinion 
of Mohammed is the same as that here re- 
cited. Our author, however, remarks that 
it is most certain that Mohammed coincides | 
entirely with Haneefa in his general priaci- j 
pie, that the impost upon the land continues ' 
as before ; but he [Mohammed] carries this 
still farther ; for, as where a Mussulman pm- 
chascs lands, subject to double impost, of a 
Toglibee, the same continues upon him, so 
if a Toglibee were to purchase lands of a 
Mussulman, subject only to single impost, 



By original compacts between the Mus- 
sulmans, and Toglibees. This is expressed at 
large under the head of Seyir. 



he will not have to pay any more than the 
said single impost, since a change in the 
property makes no alteration with respect to 
those rules to which the lands are subject. 

Land devolving from a Mussulman to a 
I Zimmee becomes subject to tribute. IF a 
j Mussulman sell his lands to a C hristian, who 
| is a Zimmee and not a Toglibee, and the 
Christian aforesaid have seizin of those lands, 
Haneefa holds that tribute is to be collected 
from the same, the payment of tribute being 
a consequence of infidelity. According to 
Aboo Yoosaf, the double tithe collected there- 
from is to be expended upon the objects of 
the expenditure of tribute, which is a mode 
of adjustment easier than that of thus ex- 
changing tithe for tribute. Mohammed holds 
that the lands remain subject to tithe as 
before ; and he morever maintains that the 
tithe, collected from these lands, is to be ap- 
plied to the purposes of Zakat. It is to be 
observed that, if a Mussulman were to take 
those lands of a Christian in right of Shaffa,* 
or if the property in them were to revert to 
the seller, being a Mussulman, on account of 
the sale having been invalid, in either case 
the lands remain subject to tithe, as before ; 
in the first instance, because the Mussulman, 
as Shafee,f must effect his purpose (of ob- 
taining the lands in right of Shaffa) by 
means of a contract of sale with the proprie- 
tor, wherefore the transaction here, in fact, 
amounts to his purchasing the lands ; and, 
in the second isntance, because, by the pro- 
perty in the land reverting to the Mussul- 
man proprietor, on account of an invalidity 
in the sale, the case remains the same as if 
no transfer by sale had ever been made ; 
moreover the Mussulman's right is in no re- 
spect affected by such invalidity, since it is 
proper that that transaction be altogether 
disregarded ; whence the case remains the 
same as if no sale had ever taken place ; and 
for all these* reasons the land will continue 
subject to tithe as before. 

Case t of a Mussalman. IF a Mussulman 
convert the ground of his habitation into a 
garden, the same having been his original 
property (that is to say, he being the first 
grantee), he owes tithe upon it where he 
waters it with tithe-water, or tribute where 
he waters it with tribute-water, because this 
land is not, in its original description, either 
tithe-land or tribute-land, and in such ground 
the mode of watering is the standard of the 
expense of cultivation. 

Case of a Majoos. A MAJOOS! does not 
owe either tithe or tribute for his habitation, 
because Omar exempted dwellings from all 
impost. But, if the Majoos were to convert 
the ground of his habitation into a garden, 



*Neighbourhood, or conjunction of pro- 
perty, which gives a right of pre-emption. 

fThe person in whon* the right of pre- 
emption lies. 

J Meaning a worshipper of fire ; a Magus 

jaian. 



BOOK I. CHAP. VII.] 



ZAKAT. 



19 



he owes tribute upon the same, although he 
should water it with tithe -water, as he cannot 
lie under any obligation to pay tithe, because 
that bears the sense of an oblation and act of 
piety/ of which an infidel is held to be incap- 
able ; he is appointed, therefore, to pay tri- 
bute, which is conformable to his situation, 
as being a sort of infliction. Our author re- 
marks that analogy (from the opinion of the 
two disciple), would suggest that the Majoos 
owes tithe where the land is cultivated with 
tithe-water ; single tithe, according to Mo- 
hammed ; and double, according to Aboo 
Yoosaf : the reasons for this have been re- 
lated before. 

Definition of tithe- water and of tribute- 
water. RAIN-WATER, and the water of wells 
and fountains, and of lakes which are not 
under the particular authority of any indivi- 
dual, is what is termed tithe-water ; and the 
water of the artificial canals and aqueducts, 
constructed by the kings of Ajim (such as 
the river of Yezdejird), is tribute-water. 

THE river of Kharzim, called the Jyhoon 
[Oxus is tithe-water, according to Moham- 
med ; and so likewise is the Shyhoon, and 
also the Dijlet [Tigris] and the Firat [Euph- 
rates], because tho c e rivers arc not under the 
authority of any person whatever, nor is any 
one entitled to an exclusive privilege with 
respect to them, wherefore they are the same 
as the open sea. Abop Yoosaf considers the 
waters of all those rivers as tribute- water, 
because bridges of boats are occasionally 
thrown over them, which is an act of seizin, 
evincing that those who do so are the guar- 
dians of the stream ; and hence the water of 
those rivers must necessarily be deemed 
tribute-water. 

Impost upon land the property of Toglib 
women or infants. THE lands of infants or 
women of the Toglib tribe are subject to the 
same laws as those of the men of that tribe : 
that is to say, upon their tithe-Iandi is im- 
posed double tithe, and upon thei& tribute- 
land single tribute ; because peace was made 
with them on the terms of double contribu- 
tion to purposes of charity, but not to the 
service of the state : moreover, the lands of 
Mussulman infants or women are subject to 
a single tithe, and therefore the same is to 
be levied twofold upon the lands of Toglib 
women and children. 

UPON fountains of pitch or bitumen, or 
wells of sulphur, nothing is due where they 
are found in tithe- lands, because those pro- 
ductions do not come under the description 
of growing out of the earth [vegetables], but 
are rather the same as the water of fountains, 
which sprung out of its bosom, and are not 
subject to any impost. The proprietor of 
such placed, however, is subject to tribute 
where they exist in tribute-lands ; but this 
is to be understood only provided the con- 
tiguous soil be Capable of cultivation, because 
the imposition of tribute depends upon the 
proprietor of the land being able to cultivate 
the same. 



CHAPTER VII. 

OF THB DISBURSEMENT OF ZAKAT, AND OF 
THE PERSONS TO WHOSE USB IT IS TO BE 

APPLIED. 

Persons to whose use Zakat is to be applied. 
THE objects of the disbursement or Zakat 
are of eight different descriptions : FIRST, 
Fakeers; SECONDLY, Miskeens;* THIRDLY, 
the collector of Zakat, (provided he be not a 
Hashimeef); FOURTHLY, Mokatibs, (upon 
whom Zakat is bestowed, in order to enable 
them, by fulfilling their contract of Kitabat, 
to procure their freedom); FIFTHLY, debtors 
not possessed of property amounting to a 
Nisab; SIXTHLY, Fee Sabeel Oola [in the 
service of GoclJ]; SEVENTHLY, Ibnus Sa- 
beel, or travellers; and EIGHTHLY, Mowlk- 
futal-kaloob, And those eight descriptions 
are the original objects of the expenditure of 
Zakat, being particularly specified as such in 
the KORAN; and there are, therefore, no other 
proper or legal objects of its application. 
With respect tft the last, however (Mowle- 
futal-kaloob], the law has ceased to operate, 
since the time of the Prophet, because he 
used to bestow Zakat upon them as a bribe 
or gratuity to prevent them from molesting 
the Mussulmans, and also to secure their 
occasional assistance ; but when God gave 
strength to the faith, and to its followers, 
and rendered the Mussulmans independent 
of such assistance, the occasion of bestowing 
this gratuity upon them no longer remained ; 
and all the doctors unite in this opinion. 

Definition of the terms Fakeer and Mil- 
keen. -By tte term Fakeers is to be under- 
stood persons possessed of property, the whole 
of which, however, amounts to somewhat less 
than a Nisab. By Miskeens is understood 
persons who have no property whatever. The 
comment upon the terms Fakeer and Miskeen 
is recorded from Aboo Haneefa. Some, how- 
ever, hold the reverse description to be true. 

Allowance to the collector.~Tn* Imam is 
to allow the officer employed in the collection 
of Zakat as much out of it as is in propor- 
tion to his labour : as much, therefore, is to 
be allowed as may suffice for himself and his 
assistants ; and his allowance is not fixed to 
an eighth. Shafei argues that Zakat, being 
appropriated to eight different objects, be- 



*Fakeer and Miskeen both apply to per- 
sons in want; the distinction between these 
two terms is fully explained in the definition 
of them a little lower down. 

f A descendant from the tribe of the Pro- 
phet. 

JThe meaning of this phrase is more par- 
ticularly described in another part of this 
chapter. 

The translator is not able to find any 




UiiUlllal ^ */** w* vnv. %.i*.w v, - -- -- r 

bable that some tribe of these is alluded to 
in this place. 



20 



ZAKAT. 



[Vox,. I. 



comes thus divided into eight equal lots, of 
which one is the right of the collector, who 
is consequently entitled to an eighth of the 
whole. Our doctors argue that, as Zakat is 
paid to the collector, not as alms, but in the 
manner of a reward for service performed, 
it follows that the proportion paid him must 
be whatever may suffice for that purpose ; 
and hence it is that the collector is entitled 
to pay himself out of the collections of Zakat 
although he should be rich.* 

Definition of other terms.- BY the phra-e 
Feear-Rikab, mentioned in the KORAN 
(where it treats of the objects of expenditure 
of Zakat), is to be understood Mokatibs: this 
definition is taken from Seyid Ben Jeeroo. 
And by the term Gharumcen, in the same 
passage, are meant debtors : Shafei says that 
it means persons who have involved them- 
selves in composing the differences of others. 
By the phrase Fee Sabeel Oola, in the same 
passage, is to be understood (according to 
Aboo Yoosaf) a person who, by proverty of 
estate, is incapacitated andr cut off from 
taking a part in the wars of the faith ; that 
is, in the Jihad Farz. Mohammed, on the 
contrary, argues that the phrase here men- 
tioned applies to a person who, by poverty, 
is incapacitated from performing pilgrimage: 
the latter description, however, is necessarily 
implied and understood in the former ; 
whence the phrase in question may be said 
to apply to both. It is to be observed that 
(according to our doctors) no portion of Zakat 
is to be paid to such warriors as are in a state 
of affluence, none being objects of its appli- 
cation but those who are poor.,, 

BY the term Ibnus Sabeel [travellers] is to 
be understood persons, in a strange place, 
having left their property at home, and who 
are consequently destitute of means of sup- 
port- - , 

THE seven descriptions of persons here 

specified are the proper objects of the ap- 
plication of Zakat ; and a proprietor (who 
chooses to disbtuse his Zakat himself, and 
not to pay it to the collector) is at liberty 
either to distribute it, in equal shares, among 
se-ven persons of those different descriptions, 
or to pay the whole to one of them.- This is 
the opinion of our doctors. Shafei has said 
that a proprietor is not at liberty himself to 
disburse the Zakat upon his own property in 
any other way than bestowing a part upon 
three individuals of each several desciiption. 
The arguments on both sides here turn 011 
some peculiarities in the Arabic language. 
Our doctors take their opinion from Amroo 
Bin Abbas. * 

Zakat not to be bestowed upon Zimmees. 
IT is not lawful to bestow Zakat upon a 
Zimmee, or inlidel subject, because the Pro- 
phet directed Maaz, saying, "Take ZAKAT 



*An objection and reply are here omitted, 
as they turn solely upon points of verbal 
criticism, and consequently do not ' admit of 
an intelligible translation. 



from the rich Mussulmans, and bestow it upon 
the poor Mussulmans/ ' But although infidel 
subjects are not entitled to share in Zakat, 
yet other alms may be bestowed upon them 
in the manner of Sadka, or almsgift. Shafei 
says that they aie prohibited from partaking 
of these also, as well as of Zakat : but our 
doctors ground their opinion on this point 
upon a precept of the Prophet, who has or- 
dained that alms should be bestowed upon 
persons of every religion indiscriminately ; 
and our doctors also allege, that if it were 
not on account of the directions to Maaz, be- 
fore quoted, they should deem the bestowing 
of Zakat upon Zimmees to be legal. 

Cases which do not constitute a payment of 
Zahat.If a person employ the Zakat upon 
his property in the erection of a mosque, or 
the burial of the dead, yet his Zakat is not 
considered as being thereby discharged, be- 
cause, in the payment of Zakat, it is estab- 
lished as a principle that it shall be made 
over to the person or persons entitled to it ; 
and such delivery does not appear in this 
case. 

IF Zakat be employed in discharging the 
debts of a defunct, this is not considered as a 
payment of Zakat, because delivery docs not 
appear in this instance. 

Ira person employ the Zakat upon his pro- 
perty in the purchase of a slave, for the pur- 
pose of granting him his freedom, this is not 
a discharge of Zakat. Imam Malik main- 
tains that this art amounts to a due discharge 
of Zakat ; because he alleges that the phrase 
Feear-Rikdb, which occuis in the KORAN, ap- 
plies to a slave thus bought and liberated ; 
but our doctors argue that the emancipation 
of a slave amounts simply to a dereliction of 
property, and docs not in any respect bear 
the construction of delivery or transfer of 
possession. 

Persons wh^ are not the proper objects of 
its application. IT is not lawful to bestow 
any part of Zakat upon the rich, the Prophet 
having Aeclaied that "alms are not lawful 
to the wealthy." Shafei extends the use of 
Zakat to warriors, although they should be 
rich; but the precept here quoted is in proof 
against him. 

IT is not lawful for an owner of property to 
pay the Zakat upon it to his father, grand- 
father, or great-grandfather ; nor to his 
son, grandson, or great-grandson ; because 
the use of property between him and those 
persons is conjunct, that is to say, each of 
those relatives is entitled to the use of the 
other's property ; and hence transfer of pro- 
perty, in its full sense, does not exist in these 
cases. 

IT is not lawful for a proprietoi to pay the 
Zakat upon his property to his wife, because 
the use of property is common between the 
husband and wife, according to general cus- 
tom ; nor is it lawful for a .fvife to pay the 
Zakat upon her property to her husband 
(according to Haneefa), for the same reason. 
The two disciples have said that it is lawful 
to give Zakat to the husband, because the 



BOOK I. CHAP. VII.] 



ZAKAT. 



21 



wife of Abd-'Oola-bin-Masood asked the 
Prophet whether she should give Sadka to 
her husband ? to which he replied, "You 
have two duties, one, that of SADKA, the 
other, that of RELATIONSHIP." But to this 
our doctors reply, from Haneefa, that by the 
term Sadka, mentioned in this tradition, 
is to be understood the Sadka Nifl, or volun- 
tary alms.* 

IT is not lawful for a proprietor to bestow 
the Zakat of his property upon his own Mo- 
katib, or Am Wai id, or Modabbir, because 
in none of these cases is there a transfer of 
property, since that which falls to a slave 
becomes the property of his master ; -and a 
master has, in like manner, a superior right 
in the property of his Mokatib, whence the I 
master's transfer of property to him cannot 
be established. 

IT is not lawful for a proprietor to bestow 
the Zakat of his property upon his slave, 
whom he may have partially emancipated, 
(according to Haneefa) because such a slave 
is held by him to stand as a Mokatib; but the 
two disciples maintain that the bestowiru? of 
Zakat upon such a slave is legal, because j 
they hold this slave to be a debtor to his j 
master, t | 

IT is not lawful to bestow Zakat upon the j 
slave of a rich man, because, if it be made j 
over to the slave, it becomes the property of 
his master, and the master being rich, the 
delivery of Zakat to him is illegal. And, in 
like manner, it is illegal to bestow Zakat 
upon the child of a rich person, being an in- 
fant, since the child is supposed to be rich in 
the property of the father ; contrary to the 
case of the child of a rich person, being an 
adult, who is poor, he not being accounted 
rich in the property of his father, although 
his subsistence be a debt upon his parents : 
and also contrary to the case of the wife of a 
rich person, because she, if she be poor, is 
not accounted rich in the property pf the 
husband, or in proportion to, or on account 
of, the subsistence she enjoys from hifn. 

IT is not lawful to bestow any part of 
Zakat upon persons of the tribe of Hashim ; 
the Prophet having said, "O, descendants of 
Hashim ! of a truth GOD hath rendered un- 
lawful to you the GHOOSALA [water dirted by 
ablution of men, and also their CHIRK [fifth,] 
and in lieu thereof he hath ordained to you 
a fifth of the fifth of all plunder :" and by 
the term Ghoosala is here to be understood 
the Zakat upon property, which is not lawful 
to Hashimees : contrary to Sadka Nil! : and 
by the term Chirk is to be understood the 
same. By the tribe of Hashim are here to 
be understood the families of Alee, and 



*In opposition to Zakat, which comes un- 
der the description of Sadka Farz, or obliga- 
tory alms ; and consequently what is quoted 
above by the two disciples does not in any 
respect apply to the present case. 

fThat is for the remainder of his bondage. 
Tor a full explanation of this, see Ittak. 



Abbas, and Jafir, and Akleel, and Haris- 
Ibnal-Mootlib ; all these deriving their de- 
scent from Hashim the son of Minaf. But 
by the same Hashim, in the words of the 
Prophet before quoted, is to be particularly 
understood Hashim the great-grandfather 
of the Prophet, who also gives a name to a 
tribe.* 

Zakat is dischargd by the erroneous appli- 
cation of it to an improper person. If 
a person were to bestow Zakat upon another, 
erroneousuly supposing him to be a proper 
object of its application, and should after- 
wards discover him to be rich, or a Hashimee, 
or an infidel, or, if he should give Zakat to 
a person in the dark, and afterwards discover 
that person to be his father, or his son, in 
these cases Zakat is considered to be fully 
discharged, and no longer to remain due. 
This is according to Haneefa and Moham- 
med. Aboo Yoo^af has said that, in the 
cases here recited, Zakat is still held to re- 
main due, because it was in the power of 
that person to inquire into, and discover the 
particulars concerning him upon whom he 
bestowed Zakat previous to making it over 
to him ; and such being the case, where he is 
guilty of an evident neglect, his act is null, 
and consequently the Zakat is still a debt 
upon him ; the same as where there are seve- 
ral vessels of water, some clean and others 
unclean, or several garments, some pure 
and others defiled, -in which case, if a per- 
son, after due deliberation, .select one of the 
pots of water, and. pcj form his ablution with 
it, or put on one of the garments, and say 
his prayers, anjd he should afterwards appear 
to have committed an error, a repetition of 
the prayer or ablution is held to be incum- 
bent upon him.- Haneefa and Mohammed 
support their opinion, in this case, upon a 
decision recorded of the Prophet in a similar 
instance ; and they moreover argue, that a 
knowledge of the situation and circum- 
stances of men is only to be formed from con- 
jecture and cannot be easily obtained to a 
degree of decisive certainty, wherefore the 
matter is to )>e taken according to the donor* s 
conception of it ; the same as in a case of 
prayer, where if a man, intending to turn 
his face towards the Kaba, were to look in 
another direction, and pray and his mistake 
afterwards appear, a repetition of the prayer 
is not incumbent upon him. It is recorded 
as an opinion of iiantefa, that Zakat is to 
be held discharged if thus bestowed by mis- 
take, upon a rich person, but not if bestowed 
upon a Hashimee, a parent, or a child ; but 
the Zahir-Rau#yet accords with what was 
before advanced. What is here mentioned 
proceeds upon a supposition that the Zakat 
has been bestowed after due deliberation, in 
consequence of the donor conceiving that 
the receiver is a pioper object of its applica- 



What follows of this passage relates 
merely to the Arabian tribes, and is there- 
fore quite useless. 



ZAKAT. 



[Vot. L 



tion ; but he should not have deliberated, 
or if, after deliberation, a doubt still remain, 
the Zakat is not discharged, unless it after- 
wards appear that the receiver was a proper 
object of its application. 

Unless that person be the slave or Makatib 
of the donor. Ir a person bestow Zakat 
upon another, and afterwards discover that 
this other is his own slave or Mokatib, this 
is not held to be a discharge of his Zakat, 
because, in this case, there is no transfer of 
property (according to what has been already 
remarked), and the discharge of Zakat rests 
upon a complete transfer of it, as was for- 
merly explained. 

IT is not thought proper to bestow Zakat 
upon a person possessed of a complete Nisab 
in any property whatever, such an one being 
considered as coming under the description 
of Ghannee [rich], became this is the law 
term for any one possessed of a Nisab ; but 
the condition on which any person is 
accounted a Ghannee is, that the Nisab 
which constitutes his property be exclusive 
of all demands or incumbrances (such as 
debts, and so forth) ; and on this precise 
quantity of absolute property no Zakat is 
legally due from the proprietor, the increase 
thereof (understood in the lapse of Hawlan- 
Hawl) being a condition of the obligation to 
Zakat. 

Other persons upon whom Zakat may be 
lawfully bestowed. IT is lawful to bestow 
Zakat upon a person possessed of less than a 
Nisah, although he be sound in body and 
capable of labour, because such an one 
comes under the description of a Fakeer, 
who is one of the specified objects of its 
application, and also, because actual neces- 
sity in the sit nation or circumstances of the 
object is difficult to he ascertained, and 
therefore the rule is restricted to that 
description which affonls argument of such 
necessity ; and a deficiency in worldly 
property, to the amount of a Nisab, affords 
such argument of necessity with respect to 
the proprietor. 

IF a person were to bestow to. the amount 
of two hundred Dirms, or upwards of the 
Zakat of his property, upon one individual, 
such a procedure is abominable, but yet is 
legal Ziffer has said that this is illegal; 
because in the act of bestowing that quantity 
of Zakat, the person who receives it becomes 
a Ghannee,* which would induce the idea 
of Zakat being bestowed upon a Ghanee ; 
but to this our doctors reply, that the 
opulence of the person in question is an 
effect of the gift of Zakat to feim, and there- 
fore he does not come within the description 
of a Ghannee until after it has been bestowed, 

y e t i where discharge of Zakat tends to 

bring' any one within the description of 
Ghannee, it is abominable, the same as 
prayer when performed^near any filth. 

"Laterally, a rich person, in opposition to 
<Fakeer, a poor person. 



ABOO HANEEFA has said, "I regard it as 
most laudable to bestow upon a FAKEER, 
ZAKAT to such an amount as may preclude 
him from the necessity of begging for that 
day." 

Zakat of one city not transferable to 
another except in certain case: THE trans- 
fer of Zakat from one city to another is 
abominable, it being rather indispensable 
that the Zakat of every city be bestowed 
upon the claimants of that city ; and also, 
because in this a regard is had to the rights 
or Jowar [neighbourhood] : and hence, it 
is abominable in men to transfer the Zakat 
; upon their property from their own city to 
i another, except either for the use of their 
I relations, or for the purpose of assisting those 
! who may be in greater necessity than the 
j inhabitants of their own city ; because in the 
| one case exists the peculiar duty of con- 
| sanguinity, and in the other the application of 
i relief where it is most required. But 
j although the transfer of Zakat from one 
city to another, excepting for the purposes 
here mentioned, be accounted abominable, 
yet it amounts to a valid discharge of Zakat 
because the term Fakeer, mentioned in the 
sacred writings as one of the proper objects 
of the application of Zakat, is not local but 
general . 



CHAPTER VIII. 

OF SADKA-FITTIR 

Definition of the term. BY Sadka-fittir is 
understood the alms bestowed upon the poor 
on the Yd-al Fittir, or festival of breaking 
Lent. 

Obligation of Sadka-fittir, Sadka-fittir 
is incumbent upon all free Mussulmans 
possessed 6f property to the amount of a 
NisaT) clear of incumbrance. The obligation 
to Sadka-fittir is founded on a precept of the 
Prophet, who, in a discourse upon the 
festival of breaking Lent, said, "Let every 
person, whether INFANT or ADULT bestow 
[upon the poor] half a SAA of wheat, or 
one SAA of millet or of barley," This 
saying is recorded by Salba-Adwee, but 
being of the class of Hidees Ahad,* it 
establishes only a moral but not a religious 
obligation. 

Condi tionsof the obligation. FREEDOM is 
made a condition, in order that the assign- 
ment [of the Saduka] mav be complete : and 
Islam, or profession of the faith, is also 
made a condition, in order that this dona- 
tion may bear the construction of an obligation 
and act of piety, of which infidels are held 
incapable : and the possession of a Nisab is 



*The singular traditions :- that is, those 
which are not included among the approved 
traditions, and therefore are not supposed to 
be possessed of the same authority. 



BOOK I.-CHAP. VIII.] 



ZAKAT. 



23 



also made a condition, the Prophet having 
declared "Aims are not expected to be 
bestowed but from the ability of the RICH." 
Shafei has said that the Sadka-fittir is 
incumbent upon every person who possesses 
property to the amount or value of one 
day's subsistence for himself and family ; 
but the above precept of the Prophet is in 
proof against him. It is to be observed that 
wealth is determined at the rate of a Nisab, 
because that is the standard by which the 
law measures it ; but this, with the reserve 
of its being exclusive of all incumbrances, 
as whatever may be so occupied is accounted 
non-existent ; but increase in it is not a 
condition. There are three things connected 
with the possession of a Nisab, such as here 
described ; FIRST, prohibition against the 
acceptance of alms ; SECONDLY, obligation 
to perform sacrifice ; and THIRDLY, obliga- 
tion to bestow Sadka-fittir. 

Persons upon whom, or in whose behalf, it 
is incumbent. THE Sadka-fittir is incum- 
bent upon every individual respectively. F.bn 
Amir having recorded that the Prophet has 
constituted Sadka-fittir an absolute injunc- 
tion [Farz] upon all mankind and both 
sexes, indiscriminately. 

IT is incumbent upon a man to discharge 
the Sadka-fittir in behalf of his children, 
being infants, because he is their guardian, 
and their proivision is a Tdebt upon him ; 
wherefore the accomplishment of their duties 
of Sadka must also rest upon him, this being 
considered as a part of their provision. And, 
in the same manner, a man must discharge 
the Sadka-fittir in behalf of his male and 
female slaves, he being their guardian, and 
their subsistence depending upon him. What 
is here advanced proceeds entirely upon a 
supposition that the slaves are not held by 
the proprietor merely in the way of traffick ; 
and also that his children are not possessed 
of any independent property ; for, if the 
children be possessed of propertj', theii Sad- 
ka-fittir is to be discharged out of that, ac- 
cording to the two Sheicks. MohaYnmed 
contradicts their opinion in this instance. 
The argument of the two Sheicks is that 
the lawgiver has considered Sadka-fittir the 
same as Nifka,* and therefore it is to be 
held as such. 

Persons upon whom, orinwhosebehalf.it 
is not incumbent. THE Sadka-fittir is not 
incumbent upon a man in behalf of his wife 
because his power of guardianship and pro- 
vision, with respect to her, is incomplete, 
since a husband is not guardian over his wife 
any farther than respects the rights of mar- 
riage, nor does the provision for her rest 
upon him any further than with respect to 
food, clothing, and lodging, which are termed 
Rawatib [necessaries], any thing beyond 
which he is not accountable for. And, in 
the same manner, it is not incumbent upon 



*The subsistence due to a wife, parent, 
child, and other relations. 



a man to disburse the Sadka-fittir for his 
children, being adults, although these form 
a part of hi* family, because he is not in- 
vested with any authority of guardianship 
over them. But yet if a man was to dis- 
burse the Sadka-fittir on behalf of his wife, 
or adult children, without their desire, it is 
lawful, on a principle of benevolence, their 
consent being by custom understood. 

IT is not incumbent upon men to pay the 
Sadka-fittir for their Mokatibs neither is it 
incumbent on a Mokatib to pay it on his own 
account, such an one coming under the de- 
scription of a Fakeer. 

Exception. IT is incumbent on men to 
pay Sadka-fittir on behalf of their Modabbirs 
and Am-Walids, as being invested with 
complete authority over them. 

Not incumbent on behalf of slaves kept as 
articles o/ traffic. IT is not incumbent 
upon men to pay Sadka-fittir on behalf of 
their male and female slaves designed for 
sale as merchandise. Shafei alleges that the 
Sadka-fittir is obligatory upon such slaves, 
and that the proprietor is to pay it for 
them ; and that the Zakat upon them is due 
from the proprietor. In short, Shafei holds 
that Sadka-fittir is due from the slave, and 
Zakat from their proprietor, on two distinct 
and separate accounts ; and consequently, 
that this does not induce the idea of a repe- 
tition of Sadka upon one and the same pro- 
perty ; but with our doctors the obligation 
to Sudka-fittcr, on behalf of slaves, is held 
to rest upon their owner, the same as Zakat ; 
and consequently, if the payment of the 
former were incumbent, it would admit the 
idea of two Sa^jkas upon one property within 
the year, which is illegal. 

Nor on behalf of a partnership slave. 
No Sadka-fittir is incumbent upon any of 
the proprietors on account of a partnership 
slave, because none of them, individually, is 
invested with complete authority over him, 
nor obliged to furnish his entire provision. 
And, in the same manner, no Sadka-fitter is 
incumbent upon any of the proprietors, on 
account of two or more partnership slaves, 
according to Haneefa. The two disciples 
have said that, in this case, Sadka-fittir is 
incumbent upon the proprietor ; but in such 
a degree only, with respect to their shares, 
as may amount to a complete slave or slaves, 
and not to any fractional part or portion of 
them : for instance, if there were five slaves 
held in partnership by two men, each part- 
ner would have to pay Sadka-fittir for two 
slaves, and not for two and a half. Some, 
however, have said that the "two disciples 
agree with Hanfcefa in their doctrine upon 
this point, because the share of each partner, 
individually, cannot be collected into any 
particular slave or slaves, until a partition 
take place of the partnership stock, and con- 
sequently none of them appertains to either 
partner in particular. 

Incumbent on behalf of ivfidtl slavis.- 
IT is incumbent upon Mussulmans to pay the 
Sadka-fittir for their infidel slaves, on the 



24 



ZAKAT. 



[VOL. I. 



authority of the tradition of Salba-Adwee, 
already quoted, because there the term slaves 
is used generally, and is not restrictively 
applied to Mussulman slaves : more over in 
the traditions of Abbas, it appears that the 
Prophet said "Render SADKA-FITTIR on be- 
half of every freeman, and also of every 
slave, be that slave a CHRISTIAN, a JEW, 
or a PAGAN :" and further, it is incum- 
bent, because the occasion of the obligation 
is here established, and the proprietor [of 
the slave] is capable of taking upon him the 
responsibility for such obligations. Shafei 
maintains that, in this instance, no SacJka- 
fittir is due, because the obligation to Sadka- 
fittir rests upon a slave himself, and not 
upon his owner ; and the former (in the case 
here supposed) is incapable of such obliga- 
tion, as being an infidel. 

But not on behalf of a slave the property 
of an infidel. IF the slave be a Mussulman, 
and his master an infidel, in this case no 
Sadka-fittir whatever is due for such slave, 
according to all the doctors ; according to 
our doctors, evidently, because they hold the 
obligation of Sadka-fittir, with respect to 
the slave, to rest upon the master, and here 
the master is an infidel ; and, according to 
Shafei, because he holds the obligation to 
rest upon the slave himself, to be discharged 
by his master ; and the master, in the pre- 
sent case, is incapable of discharging it, as 
being an infidel. 

Case of a slave told with a reserve of op- 
ti on . J F a slave be sold with a reserve of 
option to one of the parties, the seller or the 
purchaser, determinable on the ensuing fes- 
tival of Fittir, in this case t^e Sadka fittir, 
on behalf of that slave, is incumbent upon 
the party to whom he may ultimately belong. 
Ziffer alleges that the discharge of the 
Sadka-fittir rests with the party in whose 
behalf reserve of option was made a con- 
dition, because the authority over that slave 
is in fact vested in him. Shafei maintains i 
that it rests with him who has possession in j 
the interim, whom he holds to be the pur- j 
chaser, on this ground, that the furnishing | 
Sadka-fittir is one of the rules of possession*, j 
the same as furnishing subsistence. Our i 
doctors argue that the possession of the j 
slave in the present case, is a matter which ' 
remains in suspense, since, if he to whom i 
the option was reserved choose to dissolve the I 
sale, the propertv in the slave reverts to the , 
seller ; but, on the other hand, if he confirm 
the sale and render it valid, the slave be- 
comes the property of the purchaser from 
the period of the original engagement ; and 
the possession thus remaining in suspense, 
that which depends upon such possession 
must remain suspended also : contrary to the 
case of Nifka, which is requisite from day 
to day, to supply the wants of nature, and 
is consequently incapable of such suspen- 
$ion. And if this slav be an article of 
traffick, ,*he same difference of opinion holds 
with respect to the Zakat upon him. 



Section. Of tht measure of Sadka- fittir 
and of the Time of its Obligation and its 
Discharge. 

Proportion of Sudka- fittir and the articles 
in which it may be discharged THE measure 
of Sadka-fittir in wheat, or flour or bran, 
or in dried fruits, is an half Saa ; and in 
dates or barley it is one Saa. The two dis- 
ciples say that dried fruits are the same as 
barley in this respect ; and there is also one 
tradition of the opinion of Haneefa to the 
same effect. The former is the doctrine re- 
corded in the Jama Sagheer. Shafei says 
that the measure of a Sadka-fittir, in all the 
articles here specified, is one Sea ; because 
Aboo Seyid Kadooree remarks that this was 
the customary Sadka-fittir in all articles in 
the time of the Prophet. Our doctors sup- 
port what was before advanced on the 
authority of the tradition of Salba Adwee, 
already repeatedly quoted ; and the doctrine 
of the whole of the companions (such as the 
Kholfa Rashidine* and others), is consonant 
to that of pur doctors : the tradition, also, 
of Aboo Seyid, cited by Shafei, implies no 
more than that, in the time of the Prophet, 
people were accustomed in giving something 
over what was obligatory. The two disciples 
allege (in support of their opinion, that 
dried fruits are the same as barley) that 
Khurma [dried dates] is one species of dried 
fruits ; and they being considered the same 
as barley, it follows that all dried fruits, as 
being of one general description, should be 
subject to the same rule. The argument of 
Haneefa is, that dried fruits and barley are 
of a corresponding nature, because as the 
poor eat the flour of wheat with its bran, so 
do they dried fruit with its core or stone : 
contrary to dates, which are the same as 
barley, in as much as the stones of the one 
and the bran of the other are thrown away. 
Barley-meal is the same as barley ; but it 
is best that, in discharging the Sadka-fittir 
in th<i , flour or bran of either barley or wheat, 
attention J:>e paid to the value ; that is to say 
if, for* instance, the value of half a Sia of 
flour be equal to that of the same quantity 
of wheat, it will suffice to give half a Saa of 
flour, but otherwise not ; and the same with 
respect to barley -meal. This is not noticed 
in the Jama Sagheer, because the value of 
meal or flour does not commonly fall short 
of that of the grain, but rather generally 
exceeds it. 

IN discharging the Sadka-fittir with bread 
regard is to be had to the value only ; this is 
approved doctrine. 

The half Saa now mentioned is to be ascer- 
tained by weight, according to Haneefa ; 
but the two disciples hold that it is to be 
ascertained by measure. 

In discharging the Sadka-fittir, flour is 
preferable to wheat, and money is preferable 
to flour according to what is recorded from 
Aboo Yousaf ; because m^ney satisfies the 



"The immediate successors of theProphet. 



BOOK II. CHAP. 1.] 



MARRIAGE. 



25 



wants most amply, and flour most readily : 
contrary to wheat, which, after it is be- 
stowed, requires to be made flour before it is 
fit for use. It is recorded, as an opinion of 
Aboo Bikr Ayamush, that wheat is prefer- 
able either to flour or money, because this is 
universally admitted to be a proper article 
in which to discharge the Sadka fittir, 
whereas concerning money and flour there 
are various opinions. 

THE Saa, according to Aboo Haneefa and 
Mohammed, consists of eight Ratls* of the 
Ratls of Irak. Aboo Yoosaf has said that it 
is only five Ratls and one third ; and this 
is a'so the doctrine of vShafei : the Prophet 
having said "Our SAA is smaller than that 
of others." The arguementof the Tirrafmet, 
in this case, is. that it is recorded by the 
Prophet, that he performed the Woozo by 
the Mid (which is two Ratls), and the Ghosl 
by the Saa (which is eight Raits) ; and the 
Saa of Omar was the same : moreover, this 
Saa is small compared with that of Hashi- 
mee, which was the Saa in common use, 
wherefore it is lawful to regard that men- 
tioned in the tradition above quoted as the 
standard in Sadka- tittir. 

Time of the commencement of the obliga- 
tion. THE obligation to the performance of 
the Sadka fittir commences with the dawn of 
the morntng of the festival of Fittir ; that 
is to say, the arr.val of that specified period 
is a condition of its obligation. Shafei 
alleges that the obligation commences with 
the sunset of the last day of Ramzan : and 
the result of this difference of opinion is, 
that if (for instance) an infidel were to be 
converted, and to become a Mussulman, -or, 
if a child were to be born, on the eve of the 
festival of Fittir, theSadka- fittir would b-due 
on account of the convert of the child, accord- 
ingtoiourdoctors; but, according to Shafei, it 
would not be due : and, on the other hand, 
if a man's child, or male or fmale slave, 
were to die on the last night of Raihzan 
Sadka- fittir is incumbent upon him or/ their 
account, according to Shafei ; but it would 
not be so, according to our doctors The 
argument of Shafei, in this case, is that the 
Sadka-fittir is essentially connected with, 
and bears relation to Fittir [the act of break- 
ing of fast], as the connection of the terms 
evinces ; and the sunset of the last day of 
Ramzan is the time of Fittir, because the 
fast may be then broken. To this our 
doctors, reply, by admitting that the Sadka- 
httir is certainly connected with the act of 
fittir, but the Fittir has reference to the 
day, and not to the night, whence it is that 
this period is expressed by the words Yawm- 
al-fittir [day of breaking fast], and not by 
the words Lail-al.fittir [night of breaking 
fast] ; and hence it follows that the obliga- 



tion to the performance of Sadka- ffttir if 
connected with the morning of the festival 
of Fittir, and not with the eve thereof. 

IT is most laudable that men discharge their 
Sadka-fittir on the day of the festival of 
Fittir, before they proceed to the mosque to 
perform the prayers of that festival, because 
the Prophet did thus; and also, because the 
precept regarding Sadka- fittir was issued 
with a view that this donation might relieve 
the wants of the poor, and thereby enable 
them to enjoy the festival, and to unite in 
the duties of it with a cheerful mind ; and 
the design is best answered by the donation 
being made before prayer. 

IF tha Sadka-fittir be discharged previous 
to the day of the festival of Fittir, it is 
lawful ; because the discharge of an obliga- 
tion, at any time after the establishment of 
the cause of the obligation, is legal, in the 
same manner as that of Zakat previous to 
the lapse of Hawlan-Hawl, 

IF a person were not to discharge the 
Sadka-fittir withip the day of the festival 
of Fittir, yet the obligation still continues, 
and it is proper that it be made good after- 
wards, because the obligation of it is imposed 
with a view to the relief of the poor, which 
object still remains; contrary to sacrifice, 
the obligation to which, if it be neglected on 
the Yawm-al Nihr [the day of sacrifice, beim* 
the tenth of the month Zce-al Hidjce], drops 
altogether ; this being merely an act of 
piety, in which the wants or rights of others 
are no way concerned. 



A Ratl is abouf fourteen ounces. 

tLiterally, the two extremes, as bein the 
oldest and youngest of the three orthodox 
doctors ; namely, Hanneefa and Mohammed 



BOOK II. 



OF NIKKAH, OR MARRIAGE. 

Definition of the term. NIKKAH, in its 
primitive sense, m?ans carnal conjunction. 
Some have said that it signifies conjunction 
generally. In the language of the law it 
implies a particular contract used for the 
purpose rf legalizing generation. 

Chap. I. Introductory. 

Chap. II . Of Guardianship and Equa- 
lity. 

Chap, III. Of the Mihr. or Dower. 

Chap IV. Of the Marriage of Slaves 

Chap. V. Of the Marriage cf Infidels. 

Chap. VI. Of Kissm, or Partition. 

CHAPTER I. 

Forms under which marriage may be con- 
tracted. MARRIARE is contracted, that is 
to say, is effected and legally confirmed, by 
means of declaration and consent, both ex 
pressed in the preterite, because although the 
use of preterite be to relate that which is 
past, yet it has been adopted, in the kyv, in 
a creative sense, to answer the necessity of 



26 



MARRIAGE. 



VOL. l. 



the case.* Decoration, in the law, signifies 
the speeeh which first proceeds from one of 
two contracting parties, and consent the 
gpeech which proceeds from the cither in re- 
ply to the declaration. 

MARRIAGE may also be contracted by the 
parties expressing themselves, one in the 
imperative, and the other in the preterite ; 
as if a man were to say to another "Contract 
your daughter in marriage to me," and he 
were to reply. "I have contracted 1 ' [my 
daughter to you] because his words "Con- 
tract your daughter to me" are expressive 
of a commission of agency, empowering to 
contract in marriage ; and one person may 
be authorized to act on both sides in mar- 
riage (as shall be hereafter explained) ; where- 
fore the reply of the father, "I have con- 
tracted," stands in the place both of de- 
claration and consent, as if he had said "I 
have contracted, and I have consented " 

MARRIAGE may also be contracted by the 
use ofthe wordNfKKAH, or marriage,- as if 
a woman were to say to a man "I have mar- 
ried myself to you for such a sum of money ,"f 
and the man were to reply "I have con- 
sented :" and, in like manner, by the word 
Tazweej, or contracting in marriage as if a 
woman were to say to a man "I have con- 
tracted myself in marriage unto you," and 
so forth : and so also, by the word Hibba, 
or gift, t as if she were to sav "I have be- 
stowed myself upon you :" and likewise, by 
the word Tamleek, or consignment, as if 
she were to say "I have consigned myself 
over to you :" and so also, by the word 
Sadka, or alms-gift, as if she were to say "I 
have given myself as an aim*, unto you." 
Shafei is of opinion that marriage cannot be 
contracted except by the words Nikkah and 
Tazweej, because the term Tamleek (for in- 
stance) does not bear the construction of ma- 
trimony either in a literal or metaphorical 
sense ; evidently not in a literal sense, this 
term never being used to express marriage ; 
nor in a metaphorical sense, because a me- 
taphor is to be understood in a particular 
sense only from the propriety of its applica- 
tion, which is not the case here, the terms 
Nikkah or Tazweej implying conjunction ! 
(as was before observed), and between the 
possessor and the possession no conjunction 
whatever exists The argument of our doc- 
tors, in this case, is that consignment ope- 
rates as the principle of a right to a carnal 
conjunction in the subject of it, in virtue 
of a right in the person (as in the case of 
female slaves) ; and the right to carnal con- 
junction is also established 4 by matrimony ; 
wherefore, as marriage and consignment thus 

*Because the present and future being 
expressed, ici the Arabic language, under 
one from, a contract expressed in the present 
fyould be equivocal. 

f Meaning her dower. 

J This, and the two following terms, are 
such'asara used where the woman does not 
itimihtc any dower. ' 



appear to be both principles operating to the 
same end, the latter may be metaphorically 
taken for the former. 

MARRiAGKmay be contracted by the use of 
the term Beeya, or sale ; as if a woman were 
to say to a man "I have sold myself into 
your hands/' and this is approved, because 
sale operates as the principle of a right in 
the person; and a right in the parson is the 
principle of a right to carnal conjunction, 
whence the proprety of the metaphorical ap- 
plication of sale to metrimony. 

ACCORDING to the Rawayet-Saheeh , mar- 
riage cannot be contracted by the use of the 
term Ijara, or hire (as if a woman were to 
say "I have hired myself to you for so 
much ;") nor by Ibahit, or permission ; 
nor by Ihlah, or rendering lawful ; nor by 
Areet or loan ; none of these operating as 
the principle of a right to a carnal conjunc- 
tion Neither can marriage be contracted by 
the use of the term Waseeyatc or bequest ; 
because bequest does not convey any right 
of possession until after the testator's death : 
and as a contract of marriage in express 
terms, referring the execution of it to a period 
subsequent to the decease of either of the par- 
ties would be null, so also, in the present 
case, a fortiori. 

Must be contracted in the presence of 
witnesses* MARRIAGE, where both the par- 
ties are Mussulmans, cannot be contracted 
but in the presence of two male witnesses, 
or of one man and two women, who are sane, 
adult, and Mussulmans, whether they be of 
established integrity of character or other- 
wise, or may ever have suffered punishment 
as slanderers The compiler of this work ob- 
serves that evidence is an essential condition 
of marriage, the Prophet having declared 
"no marriage is good without evidence;" 
and this precept is a proof against Malik, 
who maintains that in marriage notoriety 
only is a condition, and not positive evidence. 
(Qualification of a witness' IT is necessary 
that the witnesses be free, the evidence of 
slaves being in no case valid, because such 
are not competent to act in any respect 
sui juris ; and it is also requisite that they 
be of sound mind and mature age, because 
minors or idiots are in capable of acting for 
themselves ; and it is likewise necessary 
that they be Mussuluman* ; the evidence of 
infidels not being legal with respect to Mus- 
sulmans. 

Persons may witness a marriage, whote 
testimony would not be received in other 
cases. THE sex of the witnesses is not an 
essential condition of their competency, in- 
so much that marriage may be lawfully con- 
tracted in the presence of one man and two 
women : neither is the integrity of the wit- 
nesses an essential condition, insomuch that 
(according to our doctors) a marriage is valid 
if contracted in the presence of tuo Fasiks 
or unjust persons.* Shfifei maintains that 

*The word Fasik which throughout this 
work is used in contradistinction to Adil, has 



BOOK II. CHAP. I.] 



MARRIAGE 



the integrity of the witnesses is an essential 
condition, because evidence is entitled to re- 
verence and respect, the Prophet having said 
"pay reverence to witnesses ;" and Fasiks 
are not proper objects of such reverence, but 
rather the reverse. To this our doctors re- 
ply that Fasiks are competent to act for them- 
selves, and of course competency in evidence 
must also appertain to them, since they are 
not incapaitated from acting with respect 
to others ; a Fasik, moreover, is capable of 
holding the office of a Sultan or an Imam, 
whence it follows that he is also capable of 
becoming a Kazee, or a witness. A person 
who has suffered punishment for slander, as 
being still possessed of general competency, 
is also capable of bearing witness, so far as 
merely respects declaration and consent in 
matrimony, but no farther, there being a 
positive prohibition to the reception of such 
a person's evidence, which, however, admits 
of exception in the present case, like that of 
blind persons, or of the children of the parties, 
whose evidence, although not admissible in 
any other case, is yet allowed in marriage. 

Infidels may witness the marriage of an 
infidel woman IF a Mussulman marry a 
female infidel subject in the presence of two 
male infidel subjects it is lawful, according to 
Aboo Yobsaf and Hineefa. Mohammad and 
Ziffer maintain that it is not lawful because 
their testimony, with respect to declaration 
and consent in marriage, amounts to evidence 
and the evidence of infidels regarding Mus- 
sulmans is illegal ; whence it is the same in 
fact as if they had not heard the declaration 
and consent of the parties. The argument 
of the two elders, in reply to this objection, 
is, that evidence is required in matrimony, 
not with any view to the ascertainment of a 
point of property (such as dower), but 
merely in order to establish the husband's 
right of cohabitation, which is*in thi case 
the object. * 

The negotiator o/ the contract may also, in 
certain cases, be a witness to it. IF a man 
desire another to contract his daughter 
(being an infant) in marriage to a third 
person, and the other should accordingly 
contract his daughter, upon the spot, to the 
third person, in the presence of the person 
so desiring, and the act be witnessed by only 
one person besides these two, the marriage is 
lawful ; because, in this case, the father, as 
being upon the spot, is considered as the 
actual contractor of the marriage [on behalf 
of his daughter] ; wherefore the second 
person stands merely as the negotiator of the 
contract, and of course, not appearing as a 
party in it, is a competent witness with the 
therefore been rendered, in the translation, 
unjust, which is indeed the most common 
acceptation of the v*>rld ; it must, however, 
be understood to relate to a person who neg- 
lects decorum in his behaviour and dress, and 
such other inferior points, rather than to one 
who is actually known to be dishonest. 



other. But, if the father of tht infant afore- 
said should go away, and be not actually 
prejcnt at the execution of the contract, the 
marriage would be null ; because the father, 
as not being present, cannot be considered 
as the contractor, that appellation properly 
applying to the other who appears to act* 
in his absence, aa his matrimonial agent 
on his daughter's behalf ; consequently here 
would be only one competent witness present, 
and one evidence is not sufficient ; whence 
the manage would be illegal." And the rule 
is the same where a father matches his 
daughter (being an adult), at her desire, in 
the presence of one other witness ; that is to 
say, if the daughter be herself present at 
the execution of the contract it is legal, 
otherwise not. 

Section Of th* prohibited degrees ; that 
is to say, of Woman whom it is lawful to 
marry, and of those with whom Marriage 
is unlawful. 

It is unlawful to marry a mother, or a 
grandmother. A MAN may not marry his 

; mother, nor his paternal or maternal grand- 

j mother ; because the word of GOD in the 
KORAN says, "YouR AMS (that is, your 
mothers) AND YOUR DAUGHTERS ARE FOR- 
BIDDEN TO YOU ;" and the primitive sense 
of the term AM [mother] being origin or 
root, the grandmothers are comprehended in 
this prohibition. The illegality of such a 
connexion is, moreover, supported upon the 

I united opinion of all our doctors. 

I A daughtereor a grand-daughter. A MAN 
may not marry his daughter, on the autho- 
rity of the text above quoted, nor his grand- 
daughter, nor any of his direct desendants. 

A sister, a niece, or an aunt. ;N EITHER 
may a man marry his sister, nor his sister's 
daughter, nor his brother's daughter, nor 
his paternal aunt, nor his maternal aunt ; 
the prohibition of such in marriage being 
included in the text already quoted. 

ALL the degrees of aunts are also included 
in this prohibition ; to wit, maternal and 
paternal aunts, as well as the aunts of the 
father, and the aunts of the mother, both 
paternal and maternal: so also the daugh- 
ters of all the brothers ; that is to say, of 
the fu'l brother, and of the paternal* brother 
and of the maternal brother ; and, in like 
manner, the daughters of all sisters, to wit, 
of the full sisters, and of the paternal sisters, 
and of the maternal sisters ; because the terms 
Amma, Khala, Okh, and Okht, which occur 
in the passage <ff the KORAN already cited, 
apply to all those degrees of kinded. 

Or a mother-in-law IT is not lawful for 
a man to marry his wife's mother, whether, 
he may have consummated his marriage 
with her daughter or not, the Almighty 



* By the terms maternal or rJaternal 
applied to brothers and sisters, is to be 
understood half-brothers or half-sisters* by 
the father's or mother's side. 



28 



MARRIAGE. 



[VOL. I 



having prohibited such a connexion in gene- 
ral terms, without any regard to that cir- 
cumstance. 

Or * ttep-daughter. NEITHER is it lawful 
for a man to marry the daughter of his wife; 
but this only, provided he have already 
consummated his marriage with the latter, 
because the sacred text restricts the illegality 
of this union to that circumstance, where- 
fore marriage with the daughter of the wife 
is illegal, where carnal connexion has taken 
place with the .latter, whether the daughter 
be an inmate of the husband's Hsram, or 
not. It is here to be observed, that the text 
in the sacred writings which says "YouR 
WOMEN WHO RESIDE IK YOUR Harams, 

BEING THE DAUGHTERS OF YOUR WIVES 
WITH WHOM YOU HAVE HELD COHABI- 
TATION, ARE UNLAWFUL TO YOU," has j 

merely reference to custom, and does not | 
imply that the residence of the daughter I 
in tht man's Haram along with her mother | 
is unlawful ; for it is usual, when a man 
marries a woman who has /i daughter by a 
former husband, that the latter accompanies 
her mother to his house, and is thence con- 
sidered as one of his Haram.* 

Or a step-mother, or step-grand mother. 
IT is unlawful for a man to marry the wife 
of his father, or of his grandfather, God 
having so commanded, saying "MARRY NOT 

THE WIVES OF YOUR PROGENITORS." 

Or o daughter-in-law, or grand- daughter- 
in-law. NEITNER is it lawful for a man to 
marry the wife of his son. or of his grandson, 
the Almighty having said ''WED NOT THE 

WIVES OF YOUR SONS, OR YOUR^DAUGHTERS 
WHO PROCEED FROM YOUR LOIN&:" 

Or a nurse or a fatter- sitter, IT is not 
lawful for a man to marry his foster-mother, 
or his foster-sister, the Almighty having 
commanded, saying "MARRY NOT YOUR | 

MOTHERS WHO HAVE SUCKLED YOU, OR 
YOUR SISTERS BY FOSTERAGE j" and the 

Prophet has also declared, "Every thing is 
prohibited by reason of fosterage which is so 
by reason of kindred." 

Or two sisters IT is not lawful to marry 
and cohabit with two women being sisters, 
neither is it lawful for a man to cohabit with 
two sisters in virtue of a right of possession 
[as being his slaves], because the Almighty 
hai declared that such cohabitation with 
sisters i unlawful. 

Case of two listers. IF a man marry the 
sister of his female slave with whom he has 
not cohabited, such marriage is approved, 
the contract being, in this case, entered into 
by parties competent in every 4 respect. And 
this marriage being legal and valid, the man 
must not afterwards hold any carnal con- 
nexion with his female slave, even though 
he should never consummate his marriage 
carnally with her sister, because a wtfe 

c "*This observation is 'introduced merely 
with a vfew to* explain an ambiguity in the 
text referred to, 



stands in law, ts Fcemina Fututa :~~ 
neither should the husband indulge in the 
connubial enjoyment with this wife until he 
shall previously have rendered her sister [the 
slave] unlawful to him, and relinquished his 
right of cohabitation with her, by some 
means or other, such as emancipating her, 
or marrying her to another man, in order to 
avoid the construction of cohabitation with 
sisters ; but having so done, he may after- 
wards cohabit with his wife ; because the 
no breach of the law would ensue, since a 
female slave is not held in the law, merely 
as such, to be a Foemina Fututa. 

Another case o/ two sisters IF a man 
should happen to marry two sisters by two 
contracts,* and it be not known with respect 
to which marriage first took place, a sepa- 
ration from both the sisters must ensue ; 
because it is evident that his marriage with 
one of the two is illegal, but it it impossi- 
ble to ascertain with which, by reason of 
ignorance of priority ; nor is it conceivable 
that a judgment should be pronounced lega- 
lizing the marriage of either, unspecified, 
since the marriage of both remaining un- 
ascertained, a rule to make the same valid 
would be illegal as not leading to any good 
or advantage ; for the adv ntage proposed 
in matrimony is procreation, which is unat- 
tainable without carnol connexion of the 
parties ; and this connexion with a woman 
unspecified is inadmissible: moreover, allow- 
ing the marriage to be valid, it would be 
injurious to both, as laying them under the 
matrimonial reitraints without the advan- 
tage of the connubial enjoyment, which 
neither could legally possess ; for all which 
reasons their separation is indispensable. 
And in this case each sister is entitled to 
receive an half dower, because, if either 
could have been proved to be first married, 
she would have had a claim to her full dower, 
but ttye priofity of marriage of either remain- 
ing unascertained, the dower is thus divided 
betweeft them. Some have said that this is 
only where each of the sisters respectively 
maintains the priority of her marriage with- 
out either being able to adduce any proofs ; 
but that where they both declare their 
ignorance of such priority, nothing what- 
ever is to be paid to either. ULtil such time 
as both agree to receive an half dower, 
as above, because that is due to them in 
virtue of a priority unascertained, where- 
fore it is necessary either that each should 
respectively maintain her priority, or that 
both should agree, as above, before any 
decree for payment of an half dower to each 
should be passed. But if each sister main- 
tain her priority, and both produce equal 

"This doubtless supposes a case where a 
man is contracted in marriage through the 
agency of others empowered by him for thtt 
purpose (as shall be shoffn in an ensuing 
chapter), and who may engage in the contract 
without his immediate knowledge * 



BOOK IF. CHAP. I.] 



MARRIAGE 



29 



evidence in support of it, an half dower is 
the right of each, according to all the doctors. 

A man may not marry an aunt and niece. 
It is unlawful for a man to marry two 
women, of whom one is the aunt or niece 
of the other, the Prophet having declared a 
precept, as recorded in the Zahir-Rawayet, 
to this effect. 

Or two women i elated within the prohibited 
degiees. IT is not lawful for a man to marry 
two women within such degree of affinity as 
would render a marriage between them 
illegal, if one of them ware a man, and 
for the same reason, because this would 
occasion a confusion of kindred. 

A man may marry a woman and her step- 
daughter. But a man may marry two 
women;, one of them being a widow; and 
the other the daughter of that widow's 
former husband by another wife, because 
here exists no affinity, either by blood or 
fosterage. Ziffer objects to this, and main- 
tains that the marriage would be illegal; 
because, if the daughter were supposed a 
man, a marriage between her and the widow 
would be illegal, and these two consequently 
stand in the same predicament, with respect 
to each other, as those in the preceding case. 
To this our doctors reply that the illegality 
there stated is supposed to exsist only in cases 
where this supposition, if applied to either 
of the women, would render their marriage 
illegal; but that does not hold in the per- 
sent instance, for if the widow were sup- 
posed to be a man, she could lawfully marry 
the daughter. And it is moreover related, 
in the Nakl Saheeh, that Abdoola the son of 
Jafir married a wife and a daughter of Alee. 

Cases which induce illeglity. IF a man 
commit whoredom* with a woman, her 
mother and daughter are prohibited to him. 
Shafei maintains that they are not prohi- 
bited; because whoredom does> not induce 
Hoormat-Mooshahirat, or prohibition, from 
affinity, as this law of prohibition is,ja pecu- 
liar distinction bestowed upon the servants 
of GOD through the divine favour, and 
whoredom being a crime, cannot potsibly 
induce that which is a favour of GOD. To 
this our doctors reply, that the carnal act 
operates as a principle or cause of a mutual 
participation of blood between the parties 
concerned in it, in vitrue of the child which 
is, or may be, the fruit thereof, that par- 
taking of the father and the mother respec- 
tively, in toto, for it is usually said "This 
child is the offspring of such a man and of 
such a woman;" and this participation 
being thus established between the child 
and each of the parents respectively, it is 
virtually so between the parents themselves, 
because although a portion of the child be a 
part of the mother, yet it is attributed, in 
toto, to the father, whence a part of the 
mother is attribuied to him ; and vice versa; 



and a mutual participation of blood being 
thus established between the man and the 
woman, it follows that the mother or th 
danghter of the latter stands as the actual 
mother or daughter of the man, because the 
former would be the grandmother of the child 
produced by such act of whoredom; she it 
therefore the root of the root of such off- 
s -ring, and the offpring is the branch of a 
branch from her ; and it is inconceivable that 
the child should be a branch of a branch 
from her, unless the fornicator were con- 
sidered as a branch from her, and the grand- 
mother the root of the fprni cator : and the 
same reasoning applies with respect to the 
daughter. 

IF a woman touch a man in lust [i.e. manu 
penem fricans, stuprum excitat], the mother 
and daughter of that woman are thereby 
prohibited to him. Shafei says that they are 
not prohibited. And the same difference of 
opinion obtains in cases where a man touches 
a woman in lust; or sees the pudendum of a 
woman ; or where a woman sees the yard of 
a man in lust': in all which instances our 
doctors hold that the mother or daughter of 
such woman are rendered unlawful to the 
man ; but Shafei maintains a contrary senti- 
ment, arguing that sec ing or touching do not 
amount to the absolute act, insomuch that 
the usual ceremonies required by the law after 
the carnal act* are not here necessary. To 
this our doctors reply, that such acts as 
those, being a cause of copulation, stand as 
that constructively. It is to be observed, 
that by touching in lust, with respect to a 
man, is meant producting a priapism with 
the hand, ov increasing the turgidity of the 
virile member, by the same means ahere 
the priapism already exists. This is an ap- 
proved definition of that phrase, as to the 
term lust, with respect to young men in full 
vigour and equal to the performance of 
coition ; but with respect to old men, and 
Inneens (or persons naturally impotent), the 
exciting of lust amounts only to causing the 
heart to boat more quickly than usual; ot 
| increasing that palpitation where it already 
exists. By the exciting of lust in women or 
eunuchs is understood simply causing a 
desire of coition, or increasing that desire 
where it already exists. These definitions 
are recited at large in the Fatavee Alum- 
gueeree. By seeing ihe pudendum of a 
woman is understood; seejng the entrance 
of the vagina, which is not supposed prac- 
ticable unless she be in a reclining posture. 

IF a man indulge in lewdness with a 
woman until^he produce an emission, some 
have said thai this occasions Hoormat-Moo- 
sahirat, or prohibition from affinity, [ with 
respect to the kindred of that woman ;] but 
it is certain that this does not occasion pro- 
hibition, because the man, by producing an 
ex-vulval emiss'on, manifests that coition 
was not his intention ; wherefore it does 'not 



*Arab. Zinna, meaning either fornication 
or adultery. (Vide Sales'* Koran ) 



*Such as ablution, and so forth. 



30 



MARRIAGE, 



[VOL I. 



stand as such. And, in like manner, if a 
man enter a woman in ano, some have said 
that this occasions prohibition from affinity 
as such an act amounts to touching in lust ; 
but it is certain that this does not occasion 
prohibition, because the carnal conjunction 
of the sexes does not stand as procreation 
on any other principle than as it may be the 
occasion of offspring, which it cannot possibly 
be from the performance of the act as above 
described, 

A man cannot marry the sister of hit re- 
pudiated w\fe during her Edit, IF a man 
repudiate his wife, either by a complete or a 
reversible divorce, it is not lawful for him to 
marry her sister until the expiration of her 
Edit,* Shafei maintains that is lawful, 
because by either of those forms of divorce 
the former marriage was completely dis- 
solved, insomuch, that if a man were to have 
carnal knowledge of his repudiated wife 
during her Edit, knowing the illegality of 
the same; he would be liable to tire punish- 
ment for whoredom. To this our doctors 
reply, that whatever the nature of the di- 
vorce may have been, whether reversible or 
complete, the marriage with the first sister 
does still, in fact, continue during her Edit, 
in virtue of the continuance of several of its 
effects, such as maintenance, and custody, 
any inability to marry another man ; neither 
does it appear, in the book of divorce, that 
and punishment for whoredom is specified in 
the ease of the husband having carnal con- 
nexion with his repudiated wife within the 
term of her Edit ; although, according to the 
book of punishments, he would incur it, 
because by the act of divorce, the husband's 
right of cohabitation is dissolved and conse- 
quently any subsequent cohabitation with 
her would bear the construction of whore- 
dom ; but yet his other rights are not dis- 
solved (as was above observed), wherefore, if 
he were to marry the second sister before the 
expiration of the former's Edit, it would 
amount to a marriage with two sisters at 
one time, which is forbidden. 

Marriage with slaves A MASTER may not 
marry his female salve, nor a mistress her 
bondsman, because marriage was instituted 
with a view that the fruit might belong 
equally to the father and the mother, and 
mastership and servitude are contradictory 
to each other, wherefore it is not admissible 
that offspring should thus be divided be- 
tween the master and the slave. 

And with Kitabees.- MARRIAGE with a 
Kitabec woman is legal, according to the 
word of GOD, "WOMEN ARE * LAWFUL TO 
YOU, SUCH AS ARE Mahsanas OF THE SCRIP- 
TURAL " SECTS :", (the term Mahsana does 
not, in this passage, imply a Muslamite, but 



The time of probation t which a divorced 
woman u to wait before she can engage in 
a second 'marriage, in order to determine 
whether A or not she be pregnant by the for- 
mer. See Book IV. Chap II. 



merely a woman of chaste reputation,*) 
Free Kitabee women, and those who are 
slaves, are equal in point of matrimonial 
legality, as shall be demonstrated hereafter. 

And with Majoosees. IT is unlawful to 
marry a Majoosee woman, GOD having said 

"YE MAY HOLD CORRESPONDECE WITH 

Kitabees, BUT YE MUST NOT MARRY THEIR 

DAUGHTERS, NOR PARTAKE OP THEIR SACRI- 
FICES." 

And with Pagans. IT is unlawfui to 
marry a Paeran woman, according to the 
words of the KORAN, "MARRY NOT A 
WOMAN OF the Polytheists UNTIL SHE 

EMBRACE THE FAITH." 

And with Sabeans. A MUSSULMAN may 
marry a woman of the Sabeans, she believ- 
ing the scriptures, and professing faith in 
the prophets ; but if she worship the stars, 
and believe not in any of the divine scrip- 
tural revelations, it is unlawful to marry her 
such being inolator*. The diversity of 
opinion which is recorded between Haneefa 
and the two disciples, originates in their 
different ideas with respect to the Sabeans ; 
each arguing according to his own premises, 
for Haneefa accounts the Sabeans to be 
Kirabees ; whereas the two disciples con- 
sider them as worshippers of the stars. 

Marriage during pilgrimage. I? is lawful 
either for a man or a woman to marry during 
the Ihramf of pilgrimage. Shafei alleges 
that it is unlawful, And the same diffe- 
rence of opinion obtains in the case of a 
Mohrimt contracting in marriage a woman 
to whom he is guardian. Shafei supports 
his opinion upon a precept of the Prophet, 
"MOHRIMS marry not, nor cause to marry. 
In opposition to this, however our doctors 
produce the instance of the Prophet himself, 
who married Meyemoona whilst he was a 
Mohrim; and with respect to the traditionary 
precent citecfrbv Shafei, as above, it is to be 
regarded as solely applvim? to the act of 
carnal conjunction, that is to say, the word 
Nikkah$ in that sentence is to be construed 
into Wuttee,n asif he had said, "Let not 
MOHRIMS hold carnal connexion, nor 
MOHRIMAS admit men to such connexion 
This indeed is rather a weak comment, since 
the word Nikkah has never been construed 
into the admitting of man to the commission 
of the carnal act : but the better principle 
upon which to answer it is that from the 
grammatical construction of the sentence, the 



*This comment upon the text is meant as 
an exception to the general definition of the 
term Mahsana, as explained in the laws con- 
cerning slander, Book VII. Chap. V. 

fThe period of the pilgrims remaining at 
Mecca. 

JA pilgrim, whilst he remains at Mecca. 

Meaning conjunction in its primitive 
sense, and marriage in its occasional sense. 

llLiterally conjunction, but generally ap- 
plied to the carnal act. 



BOOK II. CHAP. I.] 



MARRIAGE. 



31 



words of the Prophet may be rendered into 
merely a negative remark rather than a 
positive prehibition, 

Mossolmans may marry female slaves. 
IT is lawful for a Mussulman, who is free, to 
marry a female slave, whether she be a 
Muslima, or Kitabeea, although he be in 
circumstance to marry a free woman that 
is to say, able to pay a dower, and afford an 
adequate maintenance to such a woman. 
Shafei says that a man cannot lawfully 
marry a Kitabee slave, he holding that it is 
not lawful for a freeman to marry any slave 
except of necessity, because by such an act 
he incurs the consequence of subjecting a 
portion of his body to bondage ; that is to 
say, his seed (which is a portion of his body) 
by entering the womb of a slave, is born in 
bondage ; 'necessity, therefore, he holds can 
alone legalize such a marriage, and conse- 
quently, that ability to pay the dower and 
maintenance of a free woman prohibits a 
freeman from marrying a slave ; but from 
this rule he excepts Muslima slaves with 
our daughters, on the other hand, marriage 
with female slaves of every description is 
legal, because the text of the KORAN, on 
which the legality of marriage is founded, 
extends to all descriptions of womei^ to 
slaves as well as to those who are free : and 
with respect to what Shafei objects, that 
"by such an act a man incurs the conse- 
quence of subjecting a portion of his body 
to bondage," it may be replied that by 
marrying a slave, a man is only withheld 
from producing free children ; but it is not 
thence to be concluded that he, de facto, sub- 
jects a portion of his body to slavery, free nor 
otherwise ; and as a man is at liberty to ab- 
stain from producing the child itself (either 
by not manying, or by marrying a woman 
who is barren), it follows that he is certainly 
at liberty to abstain from producing it in a 
state of freedom. ' 

A man already wedded to a fret woman 
cannot marry a slave. IT is unlawful for a 
man already married to a free woman to 
marry a slave, the Prophet having issued a 
precept to this effect, " Do not marry a slave 
upon [along with] a free woman. Shafei 
savs that the marriage of a slave upon a 
free woman is lawful to a man who is a 
slave ; and Malik likewise maintains that 
it is lawful, provided it be w:th the tree 
woman's consent. The above precept, how- 
ever, is an answer to both, as it is general 
and unconditional moreover, the legality 
of marriage is a blessing, to males and fe- 
males equally, but the enjoyment of it is by 
bond ace restricted to one half, insomuch 
that slaves can have only two wives, where- 
as freeman may legaly have four (as will 
be explained hereafter), and slavery operat- 
ing thus restrictively upon males does so 
equally upon femiles ;-upon the former it 
operates by a rest-iction in point of member, 
as above; but since, with respect to females, 
this is impossible, it has its effect by a re- 



striction in point of circumstances ; for in- 
stance, by restricting the legality of the 
marriage of female slaves to certain par- 
ticular circumstances, as in the present case, 
where it is admitted only under the circum- 
stance of the man not having any free wives. 

But a man wedded to a slave may marry 
a free woman. A MAN may lawfully marry 
a free woman upon a slave, the Prophet hav- 
ing so declared : moreover, a woman who is 
free is lawful under all circumstances, the 
principle of restriction before mentioned not 
operating with respect to such a woman. 

IF a man marry a slave during the Edit of 
complete divorce of another wife who is free, 
it is null, according to Haneefa. The two 
disciples allege that it is valid, as under the 
circumstances now recited it does not amount 
to marrying a slave upon a tree woman ; 
whence it is that if a man were to make a 
vow that he would not marry another woman 
upon his present wife, and he were after- 
wards to divorce his wife, and to marry 
another woman during her Edit, he would 
i not forsworn. "The argument of Haneefa, 
in this case, is that the marriage with the 
free wife does still in some shape remain, on 
account of the continuance of several of its 
effects ; wherefore that with a slave during 
the term of the free woman's Edit is not 
admissible, on a principle of caution : con- 
trary to the case of a vow, rs recited above, 
because there the intention of the vower goes 
onlv to express that he would not introduce 
another wife to the prejudce of her right 
of Kissm ; but her right of Kissm* is 
annihilated by divorce. 

pour wivh allowed to freemen.!? is 
lawful for a foreman to marry four wives, 
whether free or slaves : but it is not lawful 
for him to marry mare than four, because 
GOD has commanded in the KORAN, saying 

"YE MAY MARRY WHATSOEVER WOMEN ARE 
AOKEEABLE TO YOU, TWO, THREE, OR FOUR," 

and the numbers being thus expressly men- 
tioned, any beyond what is there specified 
would be unlawful. Shafei alleges a man 
cannot lawfully marry more than one womai 
of the description of slaves, from his tene* 
as above recited, that, "the maraiage of free- 
men with slave; is allowable only from ne- 
cessity :" the text already quoted, is, who- 
ever, in proof against him, since the term 
Nissa [woman] applies equally to free women 
and to slaves. 

And two to slaves. IT is unlawful for a 
man who is a slave to marry more than two 
women : Malik maintains that it is lawful 
for a slave tp marry as many women as a 
freeman, he holding it as a principle, that a 
slave, with respect to marriage, is in every 
particular the same as a free person, inso- 
much that (according to him) a slave is au- 
thorised to marry whithout his proprietors' 
consent. The argument of our doctors, in 



"Impartiality in cohabitation with his 
wives. See Chap. VI. 



MARRIAGE. 



[VOL. L 



this case, is that slavery operates to the pri- 
vation of one half of the natural privileges 
and enjoyments and the legality of four 
wives in marriage being of this description, 
it follows that the privilege of a slave ex- 
tends to the possession of two wives only, in 
order that the dignity cf freedom may be 
duly supported. 

A man having the full number of wives 
allowed, cannot marry during the Edit of 
one of them. IF a man, having four wives, 
repudiate one of them, it is unlawful for 
him to marry any other woman during the 
term of that wife's lidit, whether the Divorce, 
under which she stands repudiated, be re- 
versible or complete. Shafei's doctrine dif- 
fers from this. His reasoning, and the re- 
ply to it, are the same as in the case of a man 
marrying a sister of his wife during the term 
of the latter's Edit. 

A man may marry a woman pregnant by 
whordeom. A MAN may lawfully marry a 
woman pregnant by whoredom, but he must 
not cohabit with her until aftpr her delivery. 
This is the doctrine of Hancefa and Mo- 
hammed. Aboo Yoosaf says that a marriage j 
made under such a circumstance is invalid: j 
if, however, the descent of the Foetus be known j 
and established, the marriage is null, accord- I 
ing to all the doctors The argument upon I 
which Aboo Yoosaf supports his opinion as 
above, is, that the illegality of the marriage, 
in cases where the parentage of the Foetus 
is established, originates purely in a prin- 
ciple of tenderness towards the Foetus, and 
a Foetus is an object of this tenderness, al- 
though it be begot in adultery since it is in- 
nocent of any offence ; whence ^rocurir^g the 
abortion of it is illi gal ; marriage, therefore, 
with a woman pregnant by adultery is invalid, 
equally with one where the parentage of the 
Fcetus is aesertained, and for the same reason. 
Our doctors, upon this point, argue that the 
woman is lawful in matrimony, on the au- 
thority of the sacred writings, the KORAN 
saying, "ALL WOMEN ARE LAWFUL TO YOU, 

EXCEPTING THOSE WITHIN THE PROHIBITED 

DEGREES :" and the prohibition of cohabita- 
tion until after delivery, is merely on account 
of the impropriety of sowing seed in a soil 
already impregnated by another, a prohibi- 
tion which occurs in the traditions. With 
respect to what Aboo Yoosaf alleges, that 
"the illegality of the marriage in case where 
the parentage of the Fcetus is established 
originates purely in a principle of tenderness 
towards the Foetus," it is a'together un- 
founded, because the" nullity of the marriage 
in that case originates in a regard for the 
right, or the Foetus, but of the father. 

But not a captive taken in that state. IT 
is unlawful to marry a woman taken in war, 
being pregnant at the time of her capture, 
because the parentage of her Foetus is ascer- 
tayied.* 



*As<*necessarily proceeding from some one 
of *he encmy- 



A man cannot contract his Am-Walid 
(being pregnant) to another. IF a man con- 
tract his Am-Walid, who is pregnant by him. 
to another man, it is null, because the Am- 
Walid is accounted as the Firash of her 
master, or partner of his bed, insomuch that 
the parentage of her child is established by 
the law in him, independent of any forma 
claim or acknowledgment thereof on his part, 
wherefore, if the marriage were valid, it would 
induce the existence of a right to cohabita- 
tion in two individuals with one and the 
same woman, a right which is null, as it 
would occasion a doubtful parentage. 

OBJECTION. The Am-Walid being de- 
clared the Firash of her master, it would 
appear that his marriage of her to another 
would not be legal, although she were not 
pregnant 

REPLY. The Firash right of a master in 
his Am-Walid is of but weak consideration ; 
whence it is, that if he were to deny her 
child's descent from him, it would become 
bastardized on the instant, without any as- 
severation. His Firash right in her, there- 
fore, not being of any account, independent 
of pregnancy, is not prohibitory to her mar- 
riage, unless as connected with that circum- 
stance. 

But he may so contract his enjoyed femal* 
slave. IF a man have carnal connexion with 
his female slave, and afterwards contract her 
in marriage to another man, it is lawful ; be- 
cause an absolute slave is not accounted as a 
Firash, or partner of her master's bed sinee, 
if she were to produce a child, the parentage 
would not be established in him unless he 
were to claim it. But yet it is advisable that 
the master, previous to contracting her to 
another person, suffer one term of her 
courses to elapse, so as to guard against the 
possibility of his seed mixing with that of 
the other. It is to be remarked, in this 
place, t *hat the marriage of the slave, under 
the circumstance now mentioned, being valid, 
it is lawTul for her husband to have carnal 
connexion with her immediately, and before 
her purification from her first succeeding 
courses, according to Haneefa and Aboo 
Yoosaf. Mohammed alleges, however, that 
it will be laudable in the husband to abstain 
from carnal connexion with her until one 
complete term of her courses shall have 
elapsed, because it is possible that there 
may remain in her womb seed of her 
master. wherefore it is requisite that it be 
purified of that seed, the same as in a case of 
the purchase of female slave, The argu- 
ment of the two Elders, in this casz, is that 
the institute of the law, legalizing her 
marriage, is in itself a proof that her womb 
is unoccupied, as the law does not admit 
any marriage to be legal but under that sup- 
position ; wherefore purification, in the pre- 
sent instance, is not mac'e a rule, either 
laudadle or injunctive : contrary to a case of 
purchase, that of a female slave being held 
lawful although she be pregnant. 

IF a man marry a woman, knowing her to 



BOOK II CHAP. I.] 



MARRIAGE. 



S3 



have been guilty of whoredom, he may 
lawfully have carnal connexion with her 
immediately, before her purification from 
her courses, according to the two Elders : 
but Mohammed deems it laudable that he 
have no such connexion with her until after 
her purification. The reasoning of each 
upon this point is to the same effect as in 
the preceding cas*. 

An usufructuary marriage is void. A 
NIKKAH MATAT, or usufructuary marriage, 
where a man says to a woman "I will take 
the use of you for such a time for so much," 
is void, all the companions having agreed in 
the illegality of it. It is related in the 
Nakl Saheeh, that Ibn Abbas retracted from 
his first opinion and embraced that of the 
other companions : for Ibn Abb is was first 
of opinion that the usufruct here mentioned 
is allowable ; but Ale.- informed him that 
the Prophet had declared it unlawful, upon 
which he retracted from his opinion of 
usufruct being allowable : - and Ibn Abbas 
having thus retracted, all the companions 
appear to have agreed concerning its ille- 
gality. 

And so also a temporary marriage. A 
NIKKAH MOWOKKET, or temporary marriage, 
where a man marries a woman, under an 
engagement often days (for instmce) in the 
presence 'of two witnesses, is null. Ziffer 
asserts that such marriage is valid and bind- 
ing, the condition expressed of a specified 
period fur its continuance being of no effect ; 
because a marriage is not to be held null on 
account of a null or illegal condition therein 
expessed. The argument of our doctors is 
that a temporary marriage is of the same 
nature with a usufructuary marriage ; and 
in all contracts regard is had to the sense 
rather than to the latter, wherefore a tempo- 
rary marriage, is null as well as a usufruc- 
tuary marriage, whether the period specified 
be short or long ; because the principje on 
which a contract of marriage falls under the 
description of Matat, or usufructuary* is its 
containing a specification of time; and the 
same is found in a Nikkah Mowokket, or 
temporary marriage. 

Case of a double marriage by one contract. 
IF a man marry two women by one con- 
tract, one of whom is lawful to him, and 
the other prohibited, his marriage with the 
one who is lawful holds good, but that with 
the other is void because in that only a cause 
of nullity is found : contrary to where a man 
puts together a freeman and a slave, and 
sells them by one agreement, as such sale is 
null with respect to both, because sale is 
rendered nuU by an invalid condition, and 
the consent to the contrict of sale is required 
with respect to the free person, in order to 
the legality of it with respect to the slave ; 
this is therefore an invalid condition, as 
shall be demonstrated in treating of slaves, 
It is to be observe!! that the whole of the 
stipulated dower, in tru case now recited, 
goes to her with respect to whom the 
marriage is lawful, according to Haneefa. 



With the two disciples, on the contrary, the 
dower is divided into the proper dower to 
each*, and therefore she with respect to 
whom the marriage is legal receives the 
amount of her proper dower, and the re- 
mainder drops in favour of the husband ; and 
the same is recorded in the Mabsoot. 

Case of marriage by a judicial decree. 
IF a woman sue a man on a plea of marriage, 
declaring that such an one had married her, 
and produce evidence in proof of her affirma- 
tion, and the Kazee accordingly declare her 
to be the wife of such a man, and it should 
so happan that the man had never been 
actually married to that woman, yet he may, 
after this, lawfully reside with her ; and 
this is a sign of the authority of a judicial 
decree (or order of the Kazce) in regard to 
appearance ; and if the woman desire carnal 
connexion, the man may lawfully hold such 
connexion with her ; and this is a sign of the 
authority of a judicial decree, in reality, The 
authority of the judicial decree extending 
j both to appearaace and reality is a tenet of 
I Haneefa ; and is also found in a prior opinion 
I of Aboo Yoosaf. In a more recent opinion of 
Aboo Yoosaf, and with Mohammad and Sha- 
fei, it is not lawful for the man to have carnal 
connextion with this woman, because the 
Kazee has erred in his proof, as the witnesses 
bore false testimony, and an error in the 
proof destroys the authority of the decree 
in regard to reality ; wherefore it is, in some 
measure, the same as if the witnesses were 
slaves or infidels, in which case the decree 
would have no authority either in appear- 
j ance or reality^; and so it would appear in 
j the present instance likewise ; but here the 
decree has authority in regard to appearance, 
on account that the witnesses gave a true 
testimony in appearance ; yet it has no 
authority in reality, as their testimony is 
false in point of fact ; whereas, where the 
witnesses are slaves or infidels, the decree is 
destitute of authority in appearance also, as 
the proof remains unestablished even in 
appearance, since the discovery of their being 
slaves or infidels is practicable. The argue- 
ment of Haneefa is that the witnesses are, 
held, with the Kazee, to bear true testimony 
and this is proof, as it is impossible to ascer- 
tain whether their testimony be actually 
true : contrary to the state of bondage, or 
the infidelity of witnesses, as those are 
circumstances easily known and ascertained, 
wherefore their evidence is not proof in any 
way. -Now the decree being founded on the 
proof, and the authority of the decree, in 
respect to reality, being here possible, by 
previously taking the marriage for granted, 
as a matter of necessity, it follows that the 
decree has authority in respect to reality, in 
order that the contradiction between the two 
may be obviated in every shape, for if she 



That is to say, a dower suitable*oi pro- 
portioned to the rank and circumstance of 
each respectively. 



34 



MARRIAGE. 



[Vet. I. 



were not lawful to him in reality, it would 
occasion a contradiction between the two, 
instead of obviating a contradiction ; con- 
trary to a case of property claimed generally 
(that is to say, without any mention of the 
, cause of propriety), such as if a man were 
to claim a female slave generally, and bring 
jfalse evidence, and the Kaxee decree the 
slave to the plaintiff, and it afterwards 
appear that the witness bore false testimony, 
for in this case the dccne has authority in 
appearnce, but not in reality, because the 
cause of propriety in the slave are several, 
such as sale, purchase, gift, and inheritance, 
and regard cannot legally be had to any one 
of these as being prior to the other, since no 
one of them has precedence of the others, 
and to regard the whole of them as prior, is 
impossible ; wherefore the decree cannot 
possess any authority [in reality]. Observe 
that the previously taking the marriage for 
granted, as a matter of necessity, is on 
account that a decree signifies the promul- 
gation of a thing which is established, and 
not the establishment of a thing which is not 
established for, if it were not previously 
taken for granted, it would follow that a 
decree signfies the establishment of a thing 
which is uncstablished, wherefore the mar- 
riage is necessarily first taken for granted ; 
and this is possible in the case of a claim of 
marriage, but not in a case of general 
propriety, for the causes of propriety there 
are multifarious, and no one of these has 
priority over the other ; in such a case, 
therefore, the regarding of any one cause of 
propriety as prior to the others is impossible. 



CHAPTER II. 



OP GUARDIANSHIP AND EQUALITY. 

An adult female may engage in the contract 
without her guardian's consent. A WOMAN 
wh j is an adult, and of sound mind, may be 
married by virtue of her own consent, al- 
though the contract may not have been made 
or acceded to by her guardians ; and this, 
whether she he a virgin or a Siyeeba. This 
is the opinion of Haneefa and Aboo Yoosaf, 
as appears in the Zahir-Rawayet. It is re- 
corded, from Aboo Yoosaf, that her marriage 
cannot be contracted except through her 
guardian. Mohammed holds that the mar- 
riage may be contracted, but yet its validity 
is suspended upon the guardian's consent : 
on the other hand, Malik and Shafei assert 
that a woman can by no means contract her- 
self in marriage to a man in any circum- 
stance, whether with or without the consent 
of her guardians : neither is she competent 
to contract her daughter 'or her slave, nor to 
ict as a matrimonial agent for any one, so as 
:o enter into a contract of marriage on be- 
half" of her constituent ; because the end 
>roposed in marriage, is the acquisition of. 



those benefits which it produces such as pro- 
creation, and so forth; and if the perfor- 
mance of this contract were in any respect 
committed to women, its end might be de- 
feated, they being of weak reason, and open 
to flattery and deceit. Mohammad argues 
that this apprehension is done away by the 
permission of the guardian being made a 
requisite condition. The reasoning upon 
which the Zahir-Rawayet proceeds in this 
case is that, in marrying the woman has 
performed an act affecting, herself only, and 
to this she is fully competent, as being sane 
and adult, and capable of distinguishing 
good from evil, whence it is that she. is by 
law capacitated to act for herself in all mat- 
ters of property and likewise to choose a 
husband ; neither does a woman require her 
gurdian to match her for any other reason 
than is she may, by that means, avoid the 
imputation which might be thrown upon her 
modesty if she were to perform this herself ,* 
for all which reasons a woman contracting 
herself in marriage is valid, independent of 
her guardian, although it should be un- 
equal match ; but yet, in the latter case, the 
guardian is at liberty to dissolve the mar- 
riage. 

Unless the match be unequal. IT is re- 
corded as an opinion of Haneefa and Aboo 
Yoosaf, that the marriage is illegal if there 
be an inequality between the parties, It is 
also recorded that Mohammed afterwards 
adopted the sentiments of the two elders 
upon this point, and agreed with them, that 
the marriage here treated of is lawful, and 
that its validity is suspended upon the 
approbation of the guardian. 

An adult virgin cannot be married against 
her will. IT is not lawful fora guardian to 
force into marriage an adult virgin against 
her consent. This is contrary to the doc- 
trine of Skafei, who accounts an adult virgin 
the'same as an infant, with respect to mar- 
riast, since the former cannot be acquainted 
with the nature of marriage any more than 
the latter, as being equally uninformed with 
respect to the matrimonial state, whence it 
is that the father of such an one is em- 
powered to make seizin of her dower without 
her consent. The argument of our doctors 
i that the woman, in this case, is free, and 
a Mokkatiba (that is, subject to all the obli- 
gatory observances of the law, such as fast- 
ing, prayer, and so forth), wherefore no per- 
son is endowed with any absolute authority 
of guardianship over her ; contrary to the 
case of infants, over whom others are neces- 
sarily endowed with this authority, the 
understanding of such being defective, 
whereas that of an adult is held complete, 
in consequence of her having attained to 
years of discretion ; for, if it were otherwise, 
she would not be subject to the obervances 
of the law: from all vhich it follows that 
this woman is the same as an adult son ; and 
that all her acts with respect to matrimony 
are good and valid, the same as his with re- 
spect to property ; neither is her father em- 



BOOK II. CHAP. II.] 



MARRIAGE. 



35 



powered to make seizin of her dower without 
her consent expressed of virtually under- 
stood, as he is not at liberty to do so where 
she has forbidden him. 

Tokens of consent from a virgin. WHEN- 
EVER a guardian, being the person empowered 
to engage in the contract, requires the con 
sent of an adult virgin to a marriage, if she 
smile or remain silent, this is a compliance ; 
because the Prophet has said, "A virgin must 
be consulted in every thing which regards 
herself ; if she be silent it singifies 
assent ;" and also because her assent is rather 
to be supposed as she is ashamed to testify 
her desire ; and laughter is a still more cer- 
tain token of assent than silence ; contrary to 
weeping, as this manifests abhorrence, since 
tears are most commonly the effect of grief, 
and not of joy, which is rarely the occasion 
of them, and therefore not to be regarded. 
Some have said that if her laughter be in 
the manner of jest or derision it is not a com- 
pliance ; nor is her weeping a disappoval, if 
it be not accompanied with noise or lamen- 
tation. 

BUT if a marriage be proposed to an adult 



band to her is a requisite condition, but not 
the specification of the dower. It is to be 
here observed that, if the person who con- 
veys the intelligence to her be a Fazoolee 
(that is, one who is neither an agent nor 
guardian), number or integrity are conditions 
essential to the effect; that is to say, the 
information must be conveyed to her by two 
persons, or at least by one person of known 
good repute, according to Haneefa : but if 
the informer be acting merely as a messenger 
from the guardian, than neither number nor 
integrity are conditions; according to ail the 
doctors. There are many cases similar to 
this with respect to the point at persent in 
question, such as the recall of an ambassador, 
and the revocation of the privileges of a 
Mazoon. 

Token of consent from a Siyeeba. IF a 
guaidian propose a marriage to a Siyeeba 
(or woman with whom a man has had carnal 
connexion), it is necessary that her compli- 
ance be particularly expressed by words, such 
as, "I consent Jo it," because the prophet 
has said, "SIYEKBAS are to be consulted," 
and also because a Siyeeba, having had con- 



virgin by any other than her guardians, or j nexion with man, haa not the same pretence 
by a Walee Bayeed (or guardian of a more 
distant degree than her father, brother, or 
uncles), her silence or laucjhtcr are not suf- 
ficent, until she shall from her lips pronounce 
an explicit compliance, because here her 
silence might be construed to arise from 
shyness towards such a person as being a 
slrantzer, and not from her consent to the 
match ; and if it were even to be considered 
as a token of approbation, yet, under such a 
circumstance, it must be regarded as doubt- 
ful ; but this is not the case if the person 
who proposes the marriage be acting merely 
as a messenger from her parent, or other im- 
mediate guardian ; because to such an one 
the same signs of assent or dissent suffice as 
were specified in the preceding ^ase. 7lt is 
here to be observed that, in requiring* the 
woman's consent as aforsaid. it is requisite 
that the husband proposed to her be particu- 
larly named and described, so as to enable 
her to form some ida of him, whereby to 
ascertain her liking or dislike ; but it is un- 
necessary to name or specify the dower ; and 
this is approved, because marriage may be 
effected independent of any dower, as that is 
not essential to it. 

IF a man contract an adult virgin in mar- 
riage to another without her knowledge, 
upon her receiving intelligence of it the 
same tokens suffice, to singify her CDmpli- 
ance or approval, as were specified in the 
former case ; that is to say, if she laugh or 
remain silent she consents, or if she weep 
she disapproves, provided the person con- 
tracting on her behalf be her guardian, and 
as such empowered so to contract ; but if 
the contract be cohered into by any other 
than her guardian, her consent is not under- 
stood until she shall have expressed the same 
in terms ; and in this, as in the preceding 
case, the naming and describing ofthehus- 



i to silence or shyness as a virgin, ano! conse- 
quently the silent siyrns before intimated are 
not sufficient indications of her assent to the 
proposed alliance. 

Cases under which a woman is still con- 
sidered as a virgin, in respect to the tokens 
of consent IF the signs of virginity in a girl 
should happen to be effaced, either by leap- 
ing or any other exertion, or by a wound, or 
by frequent repetition of the menses, yet 
she is still to be considered as a virgin that ; 
is to say, her silence is a sufficient sign of 
her acquiescence in a marriage proposed, 
because she is still in reality a virgin, the 
law accounting every woman such who has 
not had carnal connexion with the other sex, 
and consequently subject to the same shy- 
ness and reserve, from her not being accus- 
tomed to male society. And if the signs of 
virginity be effaced even by formication, yet 
she here also stands as a virgin, according 
to Haneefa. Aboo Yoosaf, Mohammed, and 
Shafei are of opinion that the silence of 
such an one is not a sufficient token of con- 
sent to a marriage proposed because she is 
actually a Siyeeba, since she has actually 
had connexion with man Haneefa in this 
case argues that people in general still sup- 
pose her to be a virgin, and hence consider 
her speaking as a breach of decorum, and 
consequently she will refrain from speech ; 
her silence, therefore, must be held sufficiant, 
lest her delicacy b^ violated ; contrary to a 
case where a woman has lost her virginity 
either in an erroneous or an invalid mar- 
riage, as such an one would not be held a 
virgin with respect to the point in question, 
the law having manifested her carnal con t 
nexion, by instituting, in her case, % obser- 
vance which are a consequence of it (such 
as Edit and Dower), and by establishing the 
parentage of her child, whereas it recom? 



36 



MARRIAGE. 



VOL. I. 



mends as laudable, the concealment of forni- 
cation : this, however, is only where the case 
is not of a very notorious nature ; for if a 
woman be known to abandon herself to for- 
nication publicly, her silence would not be 
deemed sufficient. 

Cast of allegtion and denial IP a man 
should say to a woman, "You have heard of 
your being contracted to me by our friends, 
and remained silent"; and she reply, "No, 
1 refused you," or, "I dissented," her de- 
claration is to be credited Ziffer says that 
the declaration of the husband is to be cre- 
dited, on account that silence is the original 
state of man, wherefore the person who ad- 
heres to that is the defendant ; and the re- 
pulsion of the marriage is supervenient, 
wherefore the person who adheres to that is 
the plaintiff ; the case is therefore the same 
as where a person enters into a contract of 
sale under a condition of option, and pleads 
a rejection after the time of option has elapsed 
and the other denies the rejection, -for in 
that case the declaration of the denier is to 
be credited, as he adheres to what is original, 
to wit, silence. Our doctors, on the other 
hand, say that the husband, in the present 
case, on account of his plea of silence, pleads 
the obligation of the contract of marriage 
and consequently of his being the proprietor 
of the women's person;* and, that the wife 
by pleading the rejection, sets aside the claim 
of her husband, and must therefore be con- 
sidered as the defendant, in the same manner 
as when a depositee pleads the restoration of 
a deposit, and the proprietor of the deposit 
declares that he had not returned it to him ; 
because, in such a case, the declaration of the 
trustee would be credited, since he is in re- 
ality the defendant, although in appearance 
he be the plaintiff, for he frees himself from 
responsibility, and the original state of man 
is freedom, and an exemption from responsi- 
bility: it is otheiwise with respect to the 
case of a condition of option in sale, because 
the obligation of a sale is manifested after the 
lapse of the time option, and therefore the 
person who pleads the rejection is plaintiff 
both in reality and in appearance. But here, 
if the husband should produce evidence in 
support of his silence, the marriage becomes 
established: if, however, he have no evidence, 
then an oath must not be imposed upon the 
wife, according to Haneefa. This is one out 
of six cases in which an oath is incumbent 
upon the defendant according to Haneefa, 
in opposition to the opinion of the two dis- 
ciples : as will be fully treated of under the 
head of sales. 

Infants may be contracted by their guar- 
dians. TuE marriage of a boy or girl under- 
age, by the authority of their paternal kin- 
dred, is lawful, whether the girl be a virgin 
or not, the Prophet having declared, "Mar- 



*Arati : Booza, i.e Genitale Mulieris. The 
phrase here adopted is to be thus understood 
in.niar'riage and divorce, throughout. 



riage is committed to the paternal kindred." 
Malik alleges that this is a power the excecise 
of which does not appertain to any of the 
kindred except the father. Shafei maintains 
that it belongs only to her father or grand- 
father : and he adds that this privilege does 
not appertain to any guardian whatever with 
respect to an infant Siyeeba, although he be 
her father or her grantfather. Malik argues 
that power over freemen is estalished from 
necessity ; but in the present instance no such 
necessity exists, as infants are not subject 
to any canal appetite : yet it is vested in a 
father, on the authority of sacred writings 
contrary to what analogy would suggest : 
but he also says that a grandfather, not be- 
ing the same as a father, is not to be included 
with him. Our doctors, on the other hand, 
allege that the guardianship vested in a 
father is in no respect contrary, but is rather 
agreeable to analogy ; because marriage is a 
point which involves in it many considera- 
tions, both civil and religious ; and it is not 
perfect unless the parties he equal in degree 
according to the customary acceptation ; and 
this equality is not always to be found; where- 
fore authority is vested in the father to con- 
tract his children during their minority, lest 
an opportuniry of marrying them equally 
might he lost. Shafei argues, that entrust- 
ing the power of contracting marriage to any 
others than the father or grandfather would 
be oppressive upon the child, since it is to be 
supposed that no others are equally interested 
in its welfare or happiness ; on which prin- 
ciple it is that kindred of a more distant de- 
gree arc not empowered to act with respect 
to the property of infants, a matter of infi- 
nitely less importance than their persons, and 
consequently the acts of such, with respect to 
the latter, are unlawful a fortori Our doc- 
tors argue, that affinity is a cause of affection 
in other relations the same as in the parents, 
and in whatever degree that may be defective, 
a provision is made against any evil conse- 
quence, by vesting in the child an option of 
acquiescence in the match after puberty, 
which acquiescence is necessary to constitute 
its validity ; contrary to the case of acts with 
respect to propety, because these are capable 
of repetition, since they are done with a view 
to the acquisition of gain, which cannot be 
obtained but by such repetition ; and such 
being the case, if any loss should happen in 
the property, it^ is irretrievable ; wherefore 
authority to act in respect to property is use- 
less, unless it be absolute : and absolute au- 
thority cannot be established where there, is 
any defect. The argument of Shafei, in sup- 
port of his second proposition (to wit "that 
this privilege does not appertain to any quar- 
dian whatever with respect to an infant 
Siyeeba, although he be her father or grand- 
father"), is, that her becoming a Siyeeba is 
to be considered as endovung her with suffi- 
cient understanding and capacity to act and 
judge for herself, on account of her being 
thus accustomed to male society, wherefore 
the law operates upon this consideration 



BOOK H.-CHAP. II.] 



MARRIAGE. 



37 



without any regard to the absolute fact of her 
being endowed with such a portion of under- 
standing or not, as that is a matter which 
does not readily admit of ascertainment. To 
this our doctor rep'y, that the infant re- 
quires a guardian whose tenderness and af- 
fection must be necessarily admitted ; neither 
can her acquaintance with the other sex be 
considered as endowing her with any addi- 
tional portion of understanding in regard to 
mankind, without concupiscence, which, in 
a child, does not exist. It may also be far- 
ther observed that the precept of the Prophet 
already quoted is general and indiscriminate, 



say, if a master marry his female slave to any 
person, and afterwards ^ emancipate her, she 
will have a right of option upon her emanci- 
pation ; if she please the marriage continues, 
but if she disapprove it is dissolved ; and the 
decree of the Kasee is not essential to such 
dissolution : but it is otherwise in the case of 
option after maturity j because that option 
is reserved with a view to guard against 
injury to the other rights of the parties, 
which mifjht occur in a variety of instances, 
and which if admitted (as, if the marriage 
were absolute, thev must be), would be cal- 
culated to introduce many evils into the 
married state, since the guardian might, for 



and therefore includes all relations equally ; . .._,._. 

which makes it a sufficient answer to Malik ' instance, in executing the contract, agree to 
and Shafei. | an inadequate dower, or to an unequal 

RELATIONS stand in the same order in point [ match; and as the dissolution of the mar- 

rieht thtis tenrls to affect other rights, a 
decree of the Ka?ee is essential therein ; but, 
in the cnse of the female slave, the right of 
option after emancipfton is intended as a 
sccuritv against an evident injury to herself 
as the husbandVpower over her is extended, 
and his authority, as well as her obligations, 



in manv resnects enlarged, by her cmancina- 



of authority to contract minors in marriage 
as they do in point of inheritance ; but this 
authority, in the more distant relatives, is 
superseded by the existence of those of a 
nearer degree. 

Case in which the marriage of infants con- 
tinues binding after pubertv IF the mar- 
riage of infants be contracted by the father or r . . ., e 

grandfathers, no option after puberty remains i tion from slavery ; whence it is that this 
to them ; because the determination of parents j right of option is restricted to female slaves 
in this matter cannot be supected to origj- i only, md does not extend to males, to whom 
natc in sinister motives as their affection for \ the above principle would not apply ; and 
their offspring is undoubted ; wherefore the i such being the ca^e, the dissolution of her 
marriage is binding upon the parties, the ! marriage is to he recorded merely as the rc- 
same as if they had themselves entered into 
it after maturity. ' 

Case which admits an option of acquit- 
scence after puberty. BUT if the contract | 
should have been executed by the authority ' 
of others than their parents, each is rcspcc- i 
tivcly at liberty, after they become of age, to 



choose whether the marriage shall be con- 
firmed or annulled. This is according to 
Haneefa and Mohammad. Aboo Yoosaf 



movnl of a hardship from herself, in which 
the decree of the Kazee is no wav necessary, 
since nil persons are entitled to relieve them- 
selves from evil . 

Token of acquiescence nfter pubertv. IF 
the female, thus contracted durinc? infancy, 
be of age when the marriage is first men- 
tioned to her, and she upon that occasion 
remain silent, her silence (according to 
Haneefa and Mohammed), is to be con- 



maintains that, in this case also, no option ! strucd into consent : but if she continue 



remains to them, since he considers all guar- 
dians to be the same as parents. ,To this 
Haneefa and Mohammed reply, that the 
more distant the guardians stand in their 



ignorant of the contract, her rieht of option 
is still reserved to her, until such time as she 
is informed of it, and remain silent as above. 
Mohammed, in this case, makes it a condi- 



affinity to the parties, the. less warm arc tion that the girl be duly informed of the 
their affections supposed to be ; whence it is I rnarriaqe. because she cannot exert her right 
to be apprehended that, in contracting the ! of option without a knowledge of the cir- 
marriage, self interest, or some other sinister . ----- *L- *i: .. -* *u- 



motive, might operate in their minds to the 
disadvantage of the infant under their guar- 
dianship, an evil which is provided against 
by leaving an option to the infant after 
maturity. It is to be observed, however, 
that this case, applying generally to all 
except the father and grandfather, includes 
the mother of the infant, and a1<o the Ka?ec 
bccause^thc former, as being a woman, is de- 
ficient in judgment ; and the latter, as a 
stranger, in affection ; and consequently a 
neht of option must be reserved to the infant 
after maturity. It is also to be remarked 
that, in dissolving* the marriage, decree of 
the Kazee is a necessary condition in all 
cases of option exerted after maturity ; con- 
trary to the rule in the exertion of a similar 
right of option after manumission ; that is to 



cumstance, as the guardian may effect the 
marriage altogether unknown to her, and it 
may consequently happen that she never 
hears of it, and of course she would remain 
excused (as to her silence) on the ground of 
ignorance ; but he does not make a know- 
ledge of her right of option a condition, be- 
cause that is an institute of the law, and 
ignorance is ncYplea with respect to an insti- 
tute of the law, with which it is supposed 
that every person ought to be acquainted ; 
the case is otherwise with a female slave, 
who being employed in the service of her 
master has no opportunity to obtain any 
knowledge of the law, wherefore ig-ioranCe 
of this point is a good plea in favour of the 
continuance of her right of option. 

Circumstances which annual the right of 
option. THE right of option in a virgin. 



38 



MARRIAGE. 



[Vet. I. 



after maturity, is done away by her silence ; 
but the right of option of a man is not 
done away by the same circumstance, nor 
until he express his approbation by word or 
by deed, such as presenting her *>"<- 
habiting with her, and so forth : and in like 
manner the right of option of the female 
after maturity (in a case where the husband 
has enjoyed her before she attained to that 
state), is not annulled until she express her 
consent or disapprobation in terms (as if she 
were to say "I approve," or "I . disap- 
prove)", or until her consent be virtually 
shown by her conduct, in admitting the 
husband to carnal connexion, and so */> rtn - 

Degree of the continuance of a right of 
option after maturity. THE option of ma- 
turity of a virgin is not protracted to the end 
of the assembly ; but that of a Siyeeha, or a 
vouth, is not annulled even by the nsme 
from the assembly, because the option of 
maturity is established by dissent, on account 
of the apprehension of ihe ends of marriage 
being defeated ; and whatever is established 
bv dissent is annulled by assent, on account 
of its advantage being obtained ; now the 
silence of a virgin is assent, but not th<jt ot a 
Siveeba o r a youth : wherefore the option of 
the former is annulled, but not that of the 
two latter :moreover, a Siyeeba's option of 
maturitvt has not been established by the 
act of her husband, as is evident ; and a 
circumstance which is not established by the 
act of the husband is not restricted to that 
assembly, since that only which is delegated! 
is so restricted, as shall be hereafter demon- 
stratcd ; contrary to the option of manumis- 
sion, as that is not annulled by silence, hut 
is protracted to the end of the assembly, and 
annulled by the rising from the assembly, 
because the option of manumission is estab- 
lished by the act of the master, namely, 
emancipation : and hence regard is had to 
the Majlis in this case, as well as m that of 
a woman endowed by her husband with an 
option of divorce. 

Separation in consequence o/option ts not 
divorce. A SEPARATION between a husband 
and wife in consequence of option after ma- 
turity is not divorce, from whatever side it 
proceed, because it may with propriety 
proceed from the wife, whereas divorce can- 
not. And so also, separation in consequence 
of option after manumission is not divorce, 
for the same reason. m 

Rule inheritance in the marriage of 
infant*. IF a girl who has been contracted 
in marriage by her puardian, as already 
stated, should die before she attain maturity, 

Arab, Majlis, meaning the place or com- 
pany in which she may happen to be at the 
time of her attaining maturity. It is treated 
of at large elsewhere. Vide Index. 

afBy option of maturity, and option ot 
manumissjon, is meant, option of acquie- 
scence after maturity, or after manumission. 

JNamely, a power of divorce. 

See Book of Divorce, Chap. III. 



her husband inherits of her : and, in like 
manner, if a youth so contracted should 
die before he attains maturity, his wife 
inherits of him ;-^and so also, if either 
should happen to die after maturity, with- 
out a separation having taken place ; 
because the marriage contract was regular 
and valid as origine, and would remain so, 
until dissolved to the dissent of one or both 
of the parties in the event of their arriving 
at maturity ; but this being precluded by 
the demise of one of them, the marriage con- 
tinues good for ever ; and consequently all 
the mutual privileges established in the 
parties by the marriage are irreversibly con- 
firmed by the decease of either of them: 
contrary to the case of a marriage contracted 
by an unauthorized person, where, if either 
of the parties were to die before assent being 
duly expressed, the other would not inherit ; 
because, in this case, the existence of the 
marriage is suspended upon the consent of 
the parties, and is consequently rendered 
null by the demise of either previous to the 
declaration of their will in it ; whereas, in 
the other case, the decease of either party, 
previous to maturity or separation, as afore- 
said, does not annul, but rather confirms 
their marriage. 

Persons incapable of ncting as guardians 
in marriage. AUTHORITY to contract others 
in marriage is not vested in a slave, an 
infant, or a lunatic, because such persons, 
being considered in law as incapable of 
acting for themselves, are incompetent to 
exercise any authority over others, a fortiori ; 
moreover, this authority is established in 
guardians and others out of tenderness to 
persons who, from their situation, require 
attention and care (such as infants and 
lunatics ; but this would not be manifested 
by, committing the execution of marriage, 
on their behalf, to persons of the above 
descriptions.* 

A* infidel cannot be vested with this au- 
thority tyith respect to a Mussulman, male 
or female because the word of GOD says 

"HE DOTH NOT AUMIT INFIDELS TO ANY 

CLAIM UPON BELIEVERS ;" and, if this au- 
thority were vested in in infidels, it would be 
admitting them to such a claim, and hence 
also it is. that the evidence of infidels re- 
garding Mussulmans is not admitted ; and, 
iipon the same principle, that Mussulmans 
and infidels cannot inherit of cacli other. 

AN infidel is vested with this authority 
with respect to his children who are infidels, 
the word of GOD saying, ''INFIDELS MAY 

EXERCISE AUTHORITY OVER INFIDELS ;" 

whence it is that the evidence of infidels 
regarding infidels is admitted, and that in 
heritance obtains among them. 

Maternal relations may act in defect of 
the paternal. IN defect of paternal rela- 
tions, authority to contract^ marriage apper- 
tains to the maternal (if they be of the same 
family or tribe), such as the mother, or mater- 
nal uncle or aunt, and all others within the 
prohibited degrees, according to Haneefa, 



BOOK II. CHAP. II.] 



MARRIAGE. 



upon a principle of benevolence. Mohammed 
alleges that this authority is not vested in 
any except the paternal kindred ; and there is 
also an opinion of Haneefa on record to this 
effect. Of Aboo Yoosaf two opinions have 
been mentioned ; according to that most 
generally received, he coincides with Mo- 
hammed ; and their arguments on this sub- 
ject are twofold : FIRST, the Prophet has 
declared "Marriage is committed to the 
paternal kindred" (as was before quoted) ; 
SECONDLY, the only reason for instituting 
this authority is that families mav be pre- 
served from improper or unequal connexion ; 
and this guard over the honour of a family 
is committed to the paternal relatives, whose 
peculiar province it is to take care that their 
stock be not exposed to any mean or de- 
basing admixture, so as to subject them to 
shame. The argument of Haneefa is, that 
authority to contract marriage is instituted 
out of a regard to the interest of the child, 
which is fully manifested by committing it 
to persons whose relation to the infant is so 
near as to render them interested in its 
welfare. 

Or the Mawla of an infant female slave. 
IF the Mawla* of an infant female slave, 
having emancipated her, should contract her 
in marriage, it is lawful, although she have 
relations within the prohibited degrees upon 
the spot, provided there be not among them 
anv relations of the paternal description, 
because the Mawla stands as a paternal rela- 
tion with respect to her. 

Or the Magistrate in defect of a natural 
guardian WHERE persons are destitute 
of any natural guardian, the authority of 
contracting them in marriage is vested in 
the Imam or the Kazee ; because the Prophet 
has, in his precept??, declared, "Persons being 
destitute of guardians have a guardian in 
the Sultan." " 

Or the nearest guardian present jn the 
absence of others IF the parents, t or other 
first natural guardians of an infant, should 
be removed to such a distance as is 'termed 
Gheebat-Moonkatat, it is in that case lawful 
for the guardian next in degree to contract 
the infant in marriage. Ziffer and Shafei 
allege that it is not lawful, because this 
authority is vested in the first guardian as a 
right, in order that the family may be pre- 
served from the shame occasioned by the 
infant forming a degrading connextion ; and 
this being a* positive right, cannot be an- 
nulled by ihe absence of the party, as the 
law does not admit absence to be destructive 
of a right ; and hejice it is that if the absent 
guardian were to contract the infant in 
marriage on the spot where he may at that 
period happen to be, it isf lawful ; moreover, 
a relation of a more distant degree is not 
vested with authority in the existence of a 
nearer relative, since the more distant is 



-------- 

Meaning the emancipator. For a full 
definition of this term, see the Emancipation 
of Slaves 



precluded by the nearer. The argument of 
our doctors is that authority to contract 
minors in marriage is instituted out of 
regard to their interest, as was already 
noticed ; whence it is that this authority is 
not admitted over any, excepting such as are 
incapable of paying the necessary attention 
to their own interest ; and the regard is 
not manifested in committing the business 
of marriage to the nearer guardian, who is 
absent, as from the exertion of his prudence 
or good sense no advantage can, in that 
situation, be easily derived ; the authority, 
therefore, in this case, devolves to the 
guardian next in degree who is present : 
moreover, as, in case the first guardian were 
to die, or to income, besanc the authority, 
would devolve to the next in degree, so does 
it likewise in the present case. And with 
respect to what Ziffer and Shafei have ad- 
vanced, that "If the absent guardian were 
to contract the infant in marriage on the 
spot where he may at that period happen to 
be, it is lawful," the assertion is not ad- 
mitted : but eve'n granting this, it is still to 
be observed, that although the more distant 
guardian be further removed from the infant 
in point of consanguinity, yet, being upon 
the spot, he is enabled to transact for the 
latter, with the advantage of immediate and 
local knowledge ; and vice versa of the other 
guardians Thus they stand upon an equal 
footing with respect to authority ; and who- 
ever of them may enter into a contract of 
marriage on behalf of the infant, the same, 
holds good, and is not liable to be set aside. 
By the absence termed Gheebat-Moonkatat 
is to be understood the guardian being re- 
moved to a city out of the track of the cara- 
vans, or which is not visited by the caravan 
more than once in every year : some, how- 
ever, have defined it to signify any distance 
amounting to three days' journey . 

The guardianship over a lunatic woman 
rests with her son. IF a lunate woman 
have two guardians, one her son and the 
other her father, the authority of disposing 
of her in marriage rests with the former and 
not with the latter, according to Haneefa 
and Aboo Yoosaf. Mohammed says that the 
father is her guardian in this rrsoect, as 
feeling a more lively interest in her than the 
son> The argument of the two Elders is 
that a son is prior to all others of the parental 
kindred ; and the right of guardianship goes 
by this right of priority, in preference to 
affection thus any paternal kinsman (such 
as the son of the father's brother, for in- 
stance), is in this respect prior to the mater- 
nal grandfathlr, although the natural affec- 
tion of the latter be admitted to be the 
strongest. 

Section. OfKaf at, or Equality. 

Definition of Kafat. KAFAT, in its literal 

I sense, means equality. In the language of 

! the law it ignifies the ^^ 1 

! with a woman, in the ." v ^? fi 

which shall be immediately specified 



40 



MARRIAGE. 



[VOL. I. 



Equality necessary in marriage. In mar- 
riage regard is had to equality, because the 
Prophet has commanded, saying. "Take ye 
care that none contract women in marriage 
but their proper guardians, and that they be 
not so contracted by with their equals ; 
and also, because the desirable ends of mar- 
riage, such as cohabitation, society, and 
friendship, cannot be completely enjoyed 
except by persons who are each other's 
equals (according to the customary estima- 
tion of equality), as a woman of high rank 
and family would abhor society and cohabita- 
tion with a mean man ; it is requisite, there- 
fore, that regard be had to equality with 
respect to the husband ; that is to say, that 
the husband be the equal of his wife ; but it 
is not necessary that the wife be the equal of 
the husband, since men are not degraded by 
cohabitation with women who are their in- 
feriors. It is proper to observe, in this place, 
that one reason for attending to equality 
in marriage is, that regard is had to that 
circumstances in confirming a marriage and 
establishing its validity ; for if a woman 
should match herself to a man who is her 
inferior, her guardians have a right to 
separate them, so as to remove the dishonour 
they might otherwise sustain by it. 

In point of tribe or family EQUALITY 
is regarded with respect to lineage, this being 
a source of distinction among mankind ; thus 
it is said, M a Kooraish is the equal of a 
Kooraish throughout all their tribes ;" that 
is to say, there is no pre-eminence among 
them, between Hashmees and Niflees, Teye- j 
mees or Adwees ; and in like manner they i 
say, "an Arab is the equal of an Arab. 1 '- i 
This sentiment originates in a precept of the | 
Prophet to this effect ; and hence it is evident j 
that there is no pre-eminence considered j 
among the Kooraish tribes : and with respect 
to what Imam Mohammed has advanced, 
that "pre-eminence is not regarded among 
the KOORAISH tribes or families, excepting 
where the same is notorious, such as the 
house of the KHALIFS," his intention in 
this exception was merely to show that re- 
gard should be had to pre-eminence in that 
particular house, out of respect to the Khila- 
fet, and in order to suppress rebellion or dis- 
affection ; and not to say that an original 
equality does not exist throughout. The 
Kooraishees are the descendants of Nazir, son 
of Kanaan, as is universally known. Ibn- 
Hijr has said that the Kooraishees are de- 
scended of Kihr the son of Malik. The term 
Kooraish is a diminutive of Kursh, which 
means a body of people, or ^congregation ; 
and this appellation was originally applied 
to them, because they were accustomed to 
trade through different cities and countries, 
and after being thus scattered, used to re- 
assemble at Mecca. The Arabs are those 
who derive their descent from a stock an- 
terior to, Nazir, or (according to Ibn Hijr) 
anterior to Kihr. 

TKE Binno Bahala tribe are not the equals 
'Arabs of any other description whatso- 



ever, they being notorious throughout Arabia 
for every species of vice ; and none of those 
before mentioned esteem them as upon an 
equality with themselves. 

In point of religion. MAWALEES, this is 
to say, Ajims, who are neither Kooraishees 
nor Arabs, are the equals of each other 
throughout, regard not being had among 
them to lineage, but to Islam. Thus an 
Ajim whose family have been Mussulmans 
for two or more g nerations is the equal of 
one descended of Mussulman ancestors ; 
but one who has himself embraced the faith, 
or hj and his father only, is not the equal of 
an Ajim whose father and grandfather were 
Mussulmans ; because a family is r.ot estab- 
lished under any particular denomination 
(such as Mussulman, for instance), by a retro- 
spect short of the grandfather. This is the 
doctrine of Haneefa and Muhammed. Aboo 
Yoosaf says that an Ajim whose father is a 
Mussulman is the equal of a woman whose 
father and grandfather are Mussulmans. 

AN Ajim who is the first of his family pro- 
fessing the faith is not the equal of a woman 
whose father is a Mussulman. 

In point of freedom. EQUALITY in point 
of freedom is the same as in point of Islam, 
in all the circumstances above recited, be- 
cause bondage is an effect of infidelity, and 
the properties of meanness and turpitude are 
i therein found. 

i In point of character. REGARD is to be 
had to equality in piety and virtue, accord- 
ing to Hineefa and Aboo Yoosaf ; and this is 
approved because virtue is one of the first 
principles of superiority and a woman de- 
rives a degree of scandal and shame from 
the profligacy of her husband, beyond what 
she sustains even from that of her kindred, 
Mohammad alleges that positive equality 
in point of virtue is not to be regarded, as 
that is connected with religion, to which 
rules regarding mere worldly matters do not 
apply, excepting where the party, by any 
base or degarding misconduct such as a 
man exposing himself naked and intoxicated 
in the public street, and so forth), may have 
incurred derision and contempt. 

In point of fortune EQUALITY is to be 
regarded with respect to property, by which 
is understood a man being possessed of a 
sufficiency to discharge the dower and pro- 
vide maintenance ; because if he is unable 
to do both, or either of these, he is not the 
equal of any woman; as the dower is a con- 
sideration for the carnal use of the woman, 
the payment of which is necessary of course ; 
and upon the provision of a support to the 
wife depends the permanency of the matri- 
monial connextion ; and this is therefore in- 
dispensable a fortiori This, according to 
some, is found in the ability to support a 
wife for one month only ; but others say for 
aye u. r 'u- By a - man Prng sufficient to 
enable him to discharge the dower, is under- 
stood his ability to pay down that proportion 
of it which it is customary to give immedi- 
ately upon the marriage, and which is termed 



BOOR 1L CHAP. II.] 



MARRIAGE. 



41 



Moajil, or prompt ; the remainder, termed 
the Mowjil, or deferred, it is not usual to pay 
until a future season ; and hence it is that 
the ability to pay that part of the dower is 
not made a condition. Aboo Yoosaf teaches 
that regard is to be had only to the man's 
ability to support his wife, and not to the 
discharge of the dower, because the latter is 
of a nature to admit of delay in the pay- 
ment, but not the former; and a man is 
supposed to be sufficiently enabled to pay the 
dower where his father is in good circumstan- 
ces. According to the doctrine of Haneefa 
and Mohammed, however, the fortune of the 
man is to be considered in general (without 
regard to any particular ability), insomuch 
that a man who may even be qualified both 
to pay the dower and to provide subsistence, 
yet may not be held the equal of a woman 
possessed of a large property; since men 
consider wealth as conferring superiority, 
and poverty as inducing contempt. Aboo 
Yoosaf, on the other hand, maintains that 
wealth is not to be regarded in this respect, 
since it is not a thing of a stable or perma- 
nent nature, as propercy may be acquired 
in the morning and lost before night 

And in point of profession. EQUALITY is 
to be regarded in trade or profession, accord- 
ing to Aboo Yoosaf and Mohammed. There 
are two opinions recorded of Haneefa upon 
this point ; and there is also an opinion re- 
lated of Aboo Yoosaf ; that the profession is 
not to be regarded, unless where it is of such 
a degrading nature as to oppose an insur- 
mountable objection ; such, for instance, as 
barbers, weavers, tanners, or other workers 
in leather, and scavengers, who are not the 
equals of merchants, perfumers, druggists or 
bankers. -The principle upon which regard 
is to be had to trade or professon is, that men 
assume to themsehesa certain cpnsequence 
from the respectability of their callings, 
whereas a degree of contempt is annexted to 
them on account of the meanness thereof r 
13ut a reason, on the other hand, why trade 
or profession should not be regaded is, that 
these are not absolute upon a man, since he 
is at liberty to leave a mean profession for 
one of a more honourable nature. 

Case of a unman contracting herself on 
an inadequate dower. If a woman contract 
herselt in marriage, consenting to receive a 
dower of much smaller value than her proper 
dower,* the guardians have a right to oppose 
it, until her busband shall agree either to 
give her a complete proper dower, or to 
separate from him. This is according to 
Haneefa. -The two disciples maintain that 
the guardians are possessed of any such 
authority ; and their argument is, that what- 
ever the dower may be above ten Dirms is 
tne right of the woman, and no person is to 
be opposed in relinquishing that which is her 
own as where a woman, for instance, chooses 
to relinquish a part 8f the dower, after the 



chapter. 



d w *ris 



amount of it has been specifically stipulated. 
To this Haneefa replies, that the guardians 
assume a certain degree of respect and con- 
sideration from the magnitude of shame to 
and its smallness is an occasion of shame to 
them ; wherefore regard is had to that, as 
well as to equality : contrary to the case of a 
woman relinquishing her claim to any part 
of her dower after it has been specifically 
stipulated, because no disgrace falls upon the 
guardians from such dereliction. 

Case of a father contracting his infant child 
on a disproportionate dower IF a father 
should contract in marriage his infant daugh- 
ter, agreeing to a very inadequate dower; or, 
if he should contract his i. fant son, engaging 
for an extravagant dower, yet this is legal and 
valid with respect to them. This, however, 
is not lawful to any excepting a father or 
grandfather, according to all the doctors 
Tl e two disciples have said that diminution 
or excess in the dower is illegal only where 
it is very apparent; that is to say, a contract 
of marriage, involving any very dispropor- 
tionate excess or deficiency of dower, is not 
held by them to be legal; because the autho- 
rity of a father or grandfather to contract 
ii.fants in marriage is founded upon the 
supposition of their regard tor the interest 
of those infants, and therefore where this 
regard does not appear, the contract is null; 
and in agreeing for a deficient dower on 
behalf of a female infant; or for an excessive 
one on behalf of a male, no regard to their 
interest whatever is manifested. Similar 
to this is a case of purchase or sale ; that is 
to say, if a guardian were, on behalf of an 
infant, to sell a thing for less than its value, 
or to buy a thing for more than it is worth, 
at an excessive disproportion, such sale or 
purchase would be invalid ; and so also in 
marriage: and hence it is that no person is 
empowered, with respect to deficient or ex- 
cessive dowers, excepting a father or grand- 
father To this Haneefa replies, that the 
law here rescs solely upon whatever affords 
an argument of tenderness for the infant, 
and that is found in nearness of affinity ; 
I snd in marriage there are many considers- 
| tions of more weight and moment than the 
i dower, whereas, in transactions which con* 
cern property, that only is a consideration ; 
and where that which is the end appears to 
be defeated, their authority is done away. 
But with respect to other than the father and 
grandfather, no regard is had to affinity as 
an argument of tenderness in the persent case, 
since that exists in them in smaller degree. 
A father may contract his infant child to a 
slave. IF a man Contract his infant daughter 
to a slave, or his infant son to a female slave, 
it is lawful The compiler of the Hedaya 
observes that this is according to Haneefa, 
who argues that the father's neglect of 
equality in this instance must be fcupposdd 
to arise from some other considerations of 
greater weight, wherefore the said contract 
of marriage is lawful ; but i it should ap- 
pear that the parent has adpoted suth a 



42 



MARRIAGE. 



[VOL. I. 



match without any view to a particular 
advantage, the contract is in that case null : 
and the two Elders coincide with Haneefa 
in this opinion. According to the two dis- 
ciples the contract is illegal, because it in- 
volves a twofold disadvantage with respect 
to the infant; a want of equality in the 
first instance; and secondly, a want of resi- 
dence, as a slave cannot be or remain any- 
where but with the owner's consent. 
Section. Of a Power of Agency to 

contract Marriage. 

Agents in marriage, and their powers. 
AGENTS in matrimony are persons employed 
and authorized by the parties concerned to 
enter into contracts of marriage on their be- 
half ; and the power so delegated is termed 
Wikalit-ba-Nikkah. 

IT is lawful for a nephew to contract the 
daughter of his uncle in marriage with him- 
8C lf t Ziffer alleges that this is unlawful. 

IF a woman give authority to a man to 
contract her in marriage with himself, and 
he accordingly execute the contract in the 
presence of two witnesses it is lawful . Ziffer 
and Shafei affirm that this is illegal, because 
no person is competent to transfer and make 
himself the proprietor of that which is trans- 
ferred ; as in a case of sale, for instance, 
where, if the proprietor constitute a person 
his agent of sale with respect to any par- 
ticular property, and the agent sell the same 
to himself, both the agency and the sale are 
void, no man being competent to act as the 
transferrer of property, and to become him- 
self the master of that property. Shafei, 
however, alleges that a guardian may law- 
fully contract his word to f .himself on the 
plea of necessity, since, if he were not al- 
lowed this privilege, she might never be 
married ; but a mere agent has no such plea 
because in this case her guardian will con- 
tract her.* Our doctors, on the other hand, 
argue that an agent in matrimony is merely 
a negotiator, and the obligations of the con- 
tract do not, in any respect, affect the con- 
tractor of a marriage ; neither would any 
objections which may arise apply to the 
simple negotiation, but to the rights and 
obligations which it involves: contrary to 
the case of sale, as cited by Ziffer and Shafei, 
because there the agent appears to be acting 
not merely as a negotiator, but also as a 
principal, in the contract of sale, and is con- 
sequently affected by its obligations. It may 
be remarked in this place, that as the con- 
tractor of a marriage is merely a negotiator, 
o where a person becomes empowered to 
contract on both sides, his single declaration 
"I have contracted," comprahends both the 
declaration and the acceptance, and conse- 

?uently there is in this instance no occasion 
or two separate sentences, t 



* This proceeds upon a supposition that 
tne guardian is not within the prohibited 
degrees,'* and that no other proper person 

f See the beginning of this Book. 



Cases of a contract executed by on un- 
authorized person. IF a man should contract 
in marriage the slave of another without the 
owner's consent , and validity of the deed is 
suspended upon the will of the Owner; if he 
approve, it is lawful ; if he disapprove, it is 
null. 

IN the same manner, if a man contract a 
woman in marriage without her knowledge 
in the presence of two witnesses, or if a 
woman contract a man in marriage without 
his consent, the validity is suspended upon 
the same cirumstance. This is an opinion 
of our doctors ; because they hold that in a 
case of a contract entered into by a Fazoolce 
or unauthorized person, and to which there 
exists any person who has a right assent, 
the same stands as a complete contract, the 
validity of which is suspended upon that 
person's approbation. Shafei maintains that 
all acts whatever of a Fazoolee are null ; 
because the use of a contract is for the pur- 
pose of establishing its effect, like that of 
sale, for instance, which is used for the pur- 
pose of establishing a right of property, and 
that of marriage for the purpose of estab- 
lishing a right of enjoyment ; and Fazoolee 
is incapable of establishing the effect, on 
account of his want of authority ; wherefore 
the act of the Fazoolee is nugatory. The 
argument of our doctors is, that the founda- 
tion of the contract, namely, declaration and 
acceptance, has proceeded from a competent 
person (that is, from one who is sane and 
adult), and has reference to its proper sub- 
ject ; neither can any injury be sustained if 
the contract be executed, inasmuch as there 
exists, in respect to it, a person who has a 
right of assent, and who, if he think proper, 
will signify such assent, and give the con- 
tract force, or, if otherwise, will reject it : 
and in reply to what is urged by Shafei, we 
observe that the effect of a contract is some- 
times defeired to a period subsequent to the 
time or date of the contract ; as in a contract 
of sale under a condition of option, where 
possession is deterred until such time as the 
condition of option drops. 

IF an urauthorized person say to two per- 
sons, "Be ye witness that I have married 
such a woman who is absent;" and after- 
wards the woman should hear of it, and con- 
sent, yet the marriage is void : but if, on the 
unauthorized person speaking as above, a 
third person were to say, "I have married 
that woman to that man," and the woman on 
hearing it should consent, the marriage is 
lawful. And, in like manner, if a woman 
should say "Be ye witness that I have con- 
tracted myself to such a man who is absent," 
and the man should afterwards hear of it 
and consent, the marriage would, notwith- 
standing, be void ; but if, on the woman thus 
spe&king, a bystander were to say, "Be ye 
witness that I give consent on behalf of such 
a person ;" and the man, on hearing of it, 
should give his consent, the marriage is valid. 
This is the doctrine of Haneefa. Aboo Yoo- 
saf alleges that if a woman were to say, "I 



BOOK II. CHAP. II.] 



MARRIAGE. 



have contracted myself to such a man" (he 
being absent), and the man, on afterwards 
receiving intelligence of this, were to declare 
his assent, the marriage is valid. In short, 
according to Haneefa and Mohammed, one 
person is not competent to act as a Fazoolee 
in a contract of marriage, either on behalf of 
both parties, or as a Fazoolee on one side, 
and a principal on the other ; whereas Aboo 
Yoosaf holds a contrary opinion. But, if 
two unauthorized persons enter into a con- 
tract of marriage on behalf of both parties, 
that is to say, one on the part of the man. 
and the other on that of the woman, or, if 
the persons enter into such a contract, one as 
a Fazoolee, and the other as a principal, it 
is lawful, with our doctors (Haneefa, Mo- 
hammed, and Aboo Yoosaf). The argument 
of Aboo Yoosaf, in the case before stated, is 
that one person may in marriage stand as 
two, and the declaration of that person may 
be considered as two declarations* (whence 
it is that if one person be authorized by both 
parties, the marriage is effected by his single 
declaration) ; and, in the case of an unautho- 
rized person, the only difference is, that the 
validity of the contract remains suspended 
upon the ultimate consent of the parties, as 
in a case of Khoola, where if a man were to 
declare that ."he had repudiated his wife by 
the form of Khoola f< r such a considera- 
tion" (the wife being absent), and she were 
afterwards to receive intelligence of this, and 
to assent, the Khoola is lawful ; and so also, 
in a case of divorce or of manumission, where 
if a man we*e to declare that he had divorced 
his wife for one thousand Dirms (she being 
absent), and intelligence of this reach her, 
and she consent, or, a man declare that 
"he has emancipated such an one, his slave, 
for a recompense of one thousand Dirms" 
(the slave being absent), and the latter, 
hearing of this assent, the proceeding is law- 
ful. To this Haneefa and Mohammad rep^y 
that, in the case before recited, the decl|ra- 
tion of the unauthorized person, "I have con- 
tracted such a woman to such a man," or, 
"I have married such a woman," amounts 
to a contract on one part only, which is not 
valid, wherefore the legality of it is not sus- 
pended upon the consent of the parties, as 
its completion rests on the reply, which is 
not approved unless it proceed from a person 
present in the assembly or company where 
the contract is maJe, and during the con- 
tinuance of that company ; and, like a sale, 
it is incapable of being protracted to any 
person, on the contrary, acts on the autho- 
rity of both parties, the contract is valid, 
because here his declaration applies equally 
to both ; and where the contract is entered 
into by two unauthorised persons (acting 
for, or, as it were, representing the respec- 



That is to say, "as the proposal and the 
acceptance," or, in other words, "as the 
declaration and the consent." 



tive parties), it is complete, as it here possesses 
all the eesential properties of contract ; and so 
also in cases of Khoola or of divorce, or manu- 
mission for a compensation (as cited by Aboo 
Yoosaf), because in such instances the decla- 
ration stands as a conditional vow on the 
part of the husband or the master, so as to be 
binding upon him, and from which he can- 
not with propriety retract ; and hence the 
engagement is completed solely by him. 

Cases of the matrimonial agent exceeding 
or acting contrary to his commission. Ira 
man commission another, as his agent, to pro- 
cure him a wife, and the agent should con- 
tract him to two women, by one declaration,* 
his marriage is not valid with either, for, 
being unlawful with both, on account of iu 
contradicting the tenor of the commission 
with whi:h he was charged, and unestab- 
lished vith either, on account of unspecified 
priority, a separation ,from both must neces- 
sarily ensue. 

IF a person commission another, as his 
agent, to contract "him in marriage to a 
woman, and the agent should contract him 
to a female slave the property of some third 
person, it is valid (according to Haneefa), 
because here the agent appears to have acted 
in strict conformity with the tenor of his 
commission, as the term woman is general, 
applying equally to the whole sex, to slaves 
as well as to others; nor can there be any 
doubt, since the case supposes the slave to be 
the property not of the agent, but of some 
third person ; neither is there any impro- 
priety in it as the case supposes the autho- 
rizer not to be previously marr ed to a free 
woman. The two disciples allege that a 
marriage thus made by an agent is illegal, 
unless it be contracted with a woman who is 
the equal of the constituent ; because, by the 
term woman, generally expressed, is to be 
understood such as it is customary to wed, and 
men commonly marry their equals ; the term 
woman, therefore, thus indefinitely expressed, 
means such a woman as it is usual for such a 
man to marry. To this Aboo Haneefa replies, 
that in custom there is an indefinite latitude, 
it being common for men, even of consider- 
ably rank, to marry female slaves, as well as 
free women who are their equals ; and such 
being th case, the agent is not restricted to 
any particular description of women, as the 
term woman must be taken generally ; and 
even admitting that custom does thus prevail 
in marriage, it may be replied that custom is 
of two different descriptions, one applying to 
words (as Daba, for instance, a term apply- 
ing to beasts in general, but which custom 
hath restricted to a horse) ; and the other to 
actions (such, for instance, as mer/clothing 
themselves in new garments on the festival 
of Yd) ; now, in the present case, custom 
applies to facts, and not to terms, and there- 
fore does not admit the construction of being 
restrictive. It will hereafter be shown, in 



That is to say, by one contract. 



44 



MARRIAGE. 



[VOL/I.* 



treating of Agency, that the two doctors re- 
gard equality, in the present case, upon an- 
other principle, to wit, that a man not being 
necessitated to marry any woman, of course 
his desire of being married by an agent re- 
lates only to a woman who is his equal* 



CHAFER III. 

OF THE MIHR OR DOWER. 

Marriage without a dower is valid. A 
MARRIAGE is valid, although no mention be 
made of the dower by the contracting parties, 
because the term Nikkah, in its literal sense, 
signifies a contract of union, which is fully 
accomplished by the junction of a man and 
woman ; moreover, the payment of dower is 
enjoined by the law, merely as a token of re- 
spect for its object (the man), wherefore 
the mention of it is not absolutely essential 
to the validity of a marriage : and, for the 
same reason, a marriage is also valid, al- 
though the man were to engage in the con- 
tract on the special condition that there 
should be no dower : but this is contrary to 
the doctrine of Malik. 

Ten Dirms the lowest legal dower. THE. 
smallest dower is ten Dirms* Shafei says 
that whatever sum may be lawful as the 
price of a commodity in purchase and sale, is 
lawful as a dower, because the dower is the 
right of the woman, and consequently it must 
depend upon herself to determine the amount 
of it. The arguments ofour doctors in this 
case are twofold ; FIRST, a precept of the Pro- 
phet, which expressly declares "There is no 
dower under ten Dirms," SECONDLY, the law 



Dirms, as she had agreed to accept of less 
than ten ; neither is it proper to take an ex- 
ample, in this case, from that in which no 
dower whatever has been named, because it 
may sometimes happen that a woman may 
grant the right of possession without any 
return, and out of pure love ; but no woman 
will agree to a trifling return. And here, if 
the husband were to divorce the wife before 
consummation, her due on account of the 
dower is five Dirms, according to our three 
doctors. Ziffer holds that she is in this case 
entitled only to a Matat, or present, the same 
as would be due where no dower had been 
named.- The meaning of the term Matat 
shall be hereafter fully explained. 

The wife entitled to her whole dower-upon 
the consummation of the marriage or the 
death of the husband. IF a person specify 
a dower of ten or more Dirms, and should 
afterwards consummate his marriage, or be 
removed by death, his wife, in either case, 
has a claim to the whole of the dower speci- 
fied, because, by consummation, the delivery 
of the return for the dower, namely, the 
Booza, or woman's person,* is established, 
and therein is confirmed the right to the con- 
sideration, namely, the dower ; and, on the 
other hand, by the decease of the husband 



enjoins a dower with a view to manifest re- , * S "/_ L 
spect for the wife, wherefore it must be iixed, ' YE HAVE 
in its smallest degree, at such a sum as may 
be respectable ; and this is ten Dirms, that 
being the lowest amount of a theft inducing 
the punishment of amputation of a limb, 
which shows that such sum is the least that 
can be regarded in an important or respect- 
able light. 

Case of a dower often Dirms. IF a man 
assign, as a dower, a sum under ten Dirms, 
yet his wife sfrall receive the whole ten Diimns, 
according to our doctors. Ziffer alleges that 
she shall receive a Mihr-Misl, or proper 
dower ; because where the sum specified is 
so small as not to bear the construction of a 
dower, it is the same as if none whatever had 
been named. The argument ofour doctors 
is, that the impropriety of naming , a stipu- 
lating so small a sum is on account of the 
injunction of the law, which cannot be ful- 
filled with less than ten Dirms, and the 
worrjan will certainly be satisfied with ten 



thing becomes established and confirmed by 
its completion, and consequently is so with 
respect to all its effects. 

And to one-half, upon divorce before con- 
summation. IF the husband, in the case now 
stated, were to divorce- his wife before con- 
summation, or Khalwas Saheeh.f she in this 
case, receives half her specified dower ; Gou 
having command, saying, "!F YE DIVORCE 

THEM BEFORE YE HAVE TOUCHED THEM, AND 
HAVE ALREADY SETTLED A DOWER ON WHAT 
YE SHALL PAY THEM ONE-HALF OF WHAT 



*The<value of the Dirm is very uncertain. 
Tfen Dirms, according to one account, make 
aboilc six shillings and eightpence sterling. 



OBJICTION. *ft would here appear that the 
whole do^er should of right drop, because 
the object of the contract reverts to the wo- 
man untouched, the same as in sale, where 
the whole price drops, if the buyer and seller 
break off the contract. 

REPLY. There are two analogical conclu- 
sions applicable to this subject ; FIRST, what 
is recited in the above objection : SECONDLY 
it would appear that the whole dower is due, 
because the husband did not make use of his 
possession, but suffered it to pass from him 
untouched of his own choice ; as in sale, 
where the whole price of a purchase is due, 
if the purchaser suffer the goods to perish in 
the hands of the seller ; and these two con- 
clusions directly contradicting each other, 
they are both abandoned, and we adhere to 
the sacred text as above. This case supposes 



*LiteraIIy, Genitale arvum Mulieris. 

tRetirement, solus cum sola, where there 
is no legal or natural impedimens to the corn- 
mission of the carnal act. It is elsewhere 
translated, complete retirement. 



BOOK. II. CHAP. III.] 



MARRIAGE. 



the divorce to take place before Khalwat, or 
retirement, because that with a wife is held 
by our doctors to amount to carnal know- 
ledge, as shall be hereafter explained. 

Where no dower is stipulated in the con- 
tract, the wife receives her proper dower. IP 
a man marry a woman without specifying 
any dower, or on the express stipulation 
that she shall not have a dower, and he 
either have carnal connexion with her, or 
die, she is in that case entitled to her Mihr- 
Misl, or proper dower Shafei alleges that 
where the husband dies, nothing whatever 
remains due : but many of his disciples and 
followers admit that the woman's proper 
dower is due in case of carnal connexion. 
The argument of Shafei is. that the dower is 
purely a right of the woman ; whence it is 
in her power to relinquish it a priori, for the 
same reason as she is at liberty to remit it 
afterwards. To this our' doctors reply that 
in the dower are involved rights of three 
different descriptions ; the FIRST, the right 
of .the law, which is that it shall not consist 
of less than ten Dirms (as has been already 
said) ; the SECOND, the right of the guardians, 
which is that it shall not be short of the 
woman's proper dower ; and the THIRD, the 
right of the woman, which is that it shall 
become her property. Now the light of the 
law and the right of the guardians are to be 
regarded in the execution of the contract, 
but not its continuance ; consequently, in 
the continuance, the dower is the right of the 
woman solely ; and hence it is that she is 
empowered to give it up or relinquish it in 
the continuance of the contract, but not a 
priori. 

Or a present, in case of divorce before con- 
sumrnaticn IF a man marry a woman with- 
out any specification of a dower, or on con- 
dition of there being no dower, and divorce 
her before carnal connexion, the vioman in 
this case receives a Matat, or present ; GOD 
having commanded, saying, "Givs HE* A 

PRESENT, THE RICH ACCORDING TO HIS 
WEALTH, AND THE POOR ACCORDING TO HIS 

POVERTY, :" thus a present is incumbent upon 
the husband on the authority of the sacred j 
writings: but this is contrary to the doctrine 
of Malik. The Matat, or present, here men- 
tioned, is to consist of three pieces of dress, 
composed of such materials as are suitable to 
the woman to whom it is given ; and these 
are, the Dirra, or shift ; the Khoomar, or 
veil ; and the Mulhaffet, or outer garment. 
The quantity is determined at three pieces of 
dress, on the authority of Aysha and Ibn 
Abbas. From the restriction of the present 
to such materials as arc suitable to the wo - 
mar, it would appear that, in the adjust- 
ment, regard should be had to the woman's 
state and condition (and such is the doctrine 
of Koorokhee), because it is a sort of substi- 
tute for the woman's proper dower : but the 
more approved doctrine on this point is, that 
regard-be had solely to the state and con- 
dition of the husband, because of the words 
of the sacred text before quoted, "THE 



RICH ACCORDING TO HIS WEALTH, AND THE 
POOR ACCORDING TO HIS POVERTY. It is to 

be remarked, that the present must not ex- 
ceed in value one-half of the woman's proper 
dower, or nor be worth less than five Dirms : 
the same is recorded in the Mabsoot. 

Case of dower specified after marriage. 
IF a man marry a woman without naming 
any dower, and the parties should afterwards 
agree to a dower, and specify its amount, 
such dower goes to the woman, if the hus- 
band either consummate the marriage or die ; 
but if he divorce her before consummation, 
she receives only a present. With Aboo 
Yoosaf she, in this case, receives one-half of 
the dower sp.ciiied (and such also is the 
opinion of Shafei), because here the dower 
nas been made obligatory and specifically 
determined, and consequently one-balf is due 
according to the words of the text, "YE 

SHALL PAY THEM ONE-HALF OF WHAT YE 

HAVE SETTLED. " The argument of our doc- 
tors is that, in the ^present case, the speci- 
fication of the dower indentifies a thing which 
was due on account of the contract, to wit, 
the woman's proper dower, and as this is 
incapable of subdivision, consequently that 
which is its substitute cannot be halved. 
With respect to the text above quoted, it is 
to be regarded as applying solely to what 
has been agreed to and specified at the period 
of the contract : this being agreeable to what 
is customary. 

Case of an addition made to the dower 
after marriage. IF a man make any addi- 
tion to the dower in behalf of his wife sub- 
sequent to the ^contract, such addition is 
binding upon him. This is contrary to the 
doctrine of Ziffer, as shall be demonstrated 
in treating of an increase of price in a con- 
tract of sale But although such after- 
addition to the dower be thus approved, yet 
it drops in conequence of divorce before con- 
summation. According to an opinion of 
Aboo Yoosaf, the woman is entitled to the 
half of the additional together w/ith that of 
the original dower. The cause of this dif- 
ference of opinion is that, with Haneefa and 
Mohammed, nothing is halved but what has 
been rendered obligatory, and specifically 
determined ; whereas Aboo Yoosaf holds 
whatever is engaged for after the contract to 
be the same as that which is made obligatory 
in the contract, and therefore considers it as 
subject to the same rule. 

A wife may rzmit the whole dower. Ira 
woman exonerate her husband from any part, 
or even from the whole, of the dower, it is 
approved ; because after the execution of 
the contract, it is her sole right (as was al- 
ready explained), and the case supposes her 
dereliction of it to take place at a subsequent 
period. 

Case of Khalwat-Saheeh or retirement. 
If a man retire with his wife, and there be 
no legal or natural obstruction to the Com- 
mission of the carnal act, and he afterwards 
divorce her, the whole dower in this ca'se 
goes to her. Shafei maintains that she is 



46 



MARRIAGE. 



[VOL. I. 



here to receive no more than her half dower, 
because the husband cannot obtain posses- 
sion of the object of the contract but by 
actual coition ; and the right to the dower is 
not corroborated and confirmed without en- 
joyment. The argument of our doctors is, 
that the woman has completed her part of 
the contract, by delivering up her person, 
and by removing all obstructions, which is 
the extent of her ability ; her right to the 
recompense is therefore confirmed and corro- 
borated ; in the same manner as in a case of 
sale, where, if the seller have offered delivery 
of the goods sold, and there be nothing to 
obstruct seisin on the part of the purchaser, 
and the latter neglect to make seisin, he is 
considered as having made seisin, and the 
purchase is afterwards as a trust in the hands 
of the seller, and the whole of the price is 
obligatory upon the purchaser. 

Circumstances in which retirement does not 
imply consummation. IF a man retire with 
his wife whilst one of them is^sick, or fasting 
in the month of Ramzan, or in the Ihram of 
a pilgrimage, whether obligatory* or volun- 
tary, or of a visitation at the shrine of the 
Prophet (termed an Amrit), or whilst the 
woman is in her courses this is not regarded 
as a Khalwat-Saheeh, or complete retirement, 
insomuch, that if the man were to divorce his 
wife after such a retirement, the woman is 
entitled to her half dower only ; because all 
the above circumstances are bars to the car- 
nal act ; sickness, from the weakness and 
imbecility with which it is attended, or from 
its rendering the commission of the carnal act 
injurious to one or the other of the parties ; 
and fasting in Ramzan because it would 
induce upon the party a necessity of expia- 
tion and atonement ; and pilgrimage, or 
visitation, because it would induce a necessity 
of atonement by sacrifice ; and the woman's 
courses, because they oppose an obstruction 
both natural and legal. 

Exception. BUT if one of the parties be 
observing a Nifl [voluntary] fast only, the 
woman is entitled to her whole dower, 
because the breach of such a fast is a matter 
of indifference : a fast of atonement, or in 
consequence of a vow, is the same as a 
voluntary fast in this respect, and for the 
same reason. 

Case of retirment of an eunuch. IF a 
Ma j boob eunuch retire with his wife, and 
afterwards divorce her, she is entitled to her 
whole dower, according to Haneefa. The two 
disciples maintain that the half dower only 
goes to her, on account that a Majboob is 
still more incapacitated than a Sick person : 
contrary to the case of an Ineen (or one 
naturally impotent), because the point of 
law rests upon the existence of the instru- 
ment of generation, which is there found, 



All Mussulmans are required, once in 
their lives, to make a pilgrimage to Mecca, 
which is^ermed Hidj-Farz, or ordailed pil- 
grirrage. 



but not in the former case. Haneefa on the 
other hand, argues, that all which is due on 
the part of the woman is the delivery of her 
person (by admitting the husband to feel and 
touch her), and this being, to the extent of 
her ability, completely performed, it follows 
that the consideration is completely due to 
her. 

IT is incumbent upon the woman to observe 
an Edit (or appointed term of probation), 
after the divorce, in all the cases here recited, 
for the sake of caution, on a principle of 
propriety, from the apprehension or possi- 
bility of her womb being occupied by seed. 
The Edit is, moreover, a right of the law 
and of the foetus ; and credit is not to be 
given to the parties that they have not com- 
mitted the carnal act, because this fin pre- 
cluding the necessity of Edit) ^ would amount 
to an extinction of rights (as above specified) 
distinct and separate from these of the par- 
ties : but it is otherwise with the dower, 
because that is a matter of property, the 
right ip which cannot be decided upon 
principles of caution (like the Edit), nor 
under any circumstance admitting of doubt ; 
the dower, therefore, is not due, where 
retirement is not of the description of 
Khalwat-Saheeh. Kadooree, in his commen- 
tary upon his own work, has observed that, 
if the obstruction to the carnal act be merely 
of a legal nature (such as fasting), the ob- 
servance of Edit is incumbent, because here 
the natural ability to the performance of the 
act is supposed : but if the obstruction be of 
a positive nature (such as sickness or in- 
fancy), the Edit is not requisite, because the 
ability to perform the act does not here 
exist. 

Case in which the present to the wife is 
laudable, or incumbent. IT is laudable to 
bestow a Matat, or present, upon every 
woman divorced by her husband, excepting 
two descriptions of woman, namely, one whose 
dower, has been stipulated, and whose hus- 
band divorce her before consummation 
and one whose dower has not been stipulated 
and who is also divorced before consum- 
mation ; for in their behalf a present is 
not merely laudable, but incumbent. Shafci 
says, that a present is incumbent in behalf of 
every divorced woman, excepting one whose 
dower has been stipulated, and who is 
divorced before consummation ; because the 
present is made incumbent in the way of a 
gratuity, or compensatory gift, from the hus- 
band, on account of his having thrown the 
woman into a forlorn state by his separation 
from her ; but, in the excepted instance, the 
half dower is a substitute for the present, as 
divorce is here a dissolution of the contract, 
and the present need not be bestowed re- 
peatedly. The argument of our doctors is, 
that the present is a substitute for the proper 
dower in the case of a resigned woman (that 
is, a woman who resigns herself to her hus- 
band without a dower), on account that, 
as the proper dower drops, the present be- 
comes incumbent ; because, in a contract of 



BOOK II. CHAP. III.] 



MARRIAGE 



marriage, a return is essential : the present, 
therefore, is a substitute for the proper dower 
and such being the case, it must not be re- 
quired in addition either of the whole dower, 
which is the original thing, or to any part of 
it : whence the present is not incumbent 
vhere any part of the dower in due. As to 
what Shafei advances, that " the pesent is 
made incumbent in the way of a gratuity, 
or compensatory gift, from the husband, on 
account of his having thrown the woman 
into a forlorn state by his separation from 
her," we reply, that this act of his does 
not amount to an offence, as the husband 
is privileged by the law to do so, wherefore 
no recompense is due from him on that 
account ; and hence it is that the present is | 
regarded merely as respectful and laudable. 

Case of a reciprocal bargain between two 
contractors. IF a person contract his 
daughter, or his sister in marriage to an- 
other, on the condition of the other bestowing 
a sister or daughter in marriage upon him, so 
as that such contract shall stand as a return 
for the other, respectively, both the contracts 
are lawful. Shafei maintains that both the 
contracts are null, as they make one half of 
the woman's person, reciprocally, a dower, 
and the other half the subject of marriage ; 
because, where the person marries his j 
daughter to the other, and aho constitutes 
her the dower for the other's daughter, it 
follows that the daughter's person* is divided 
between the other person and his daughter. 
one half to that person, as husband, in virtue 
of the marriage, and the other half to his 
daughter as her dower ; and as the matri- 
monial possession, or propriety, is incapable 
of being participate (since it is ordained as j 
a complete enjoyment, and not as a partici- | 
pated one), it follows that the bargain is 
nugatory. To this our doctors reply, that 
the contract or has named, as a dower, a 
thing incapable of being so (since a woman's 
person, in the sense it here bears, is in- 
ca^able of being the property of a \voman) ; 
but yet the contract holds good, and a 
Mihr Misl, or proper dower, remains due [to 
each of the women], the same as where wine 
or a hog are assigned as a dower With 
respect to what Shafei urges, that "the 
matrimonial propriety is incapable of being 
participated," it is admitted ; but this par- 
ticipation is not induced in the present case, 
as the person of either of the daughters is 
not made the right of the other daughter in 
virtue of the contract. 

Case of marriage on a condition of service 
fiom the husband. IF a free man marry a 
woman, on the condition, in return of serv- 
ing her for a stated time (a year, for in 
stance), or of teaching her the KORAN, yet her 
proper dower is incumbent upon him not- 
withstanding, according to Haneefa and 
A boo Yoosaf, Mohammad has said that she 
is, in this case, to feceive a sum amounting 
to the estimated value of his service for one 

*Arab. Booza, t e. t Genitale Mullens. 



year. But if a slave, by his owner's consent, 
marry a woman on the same terms, it ie law- 
ful and the woman is entitled to the stipu- 
lated service only. Shafei is of opinion thai 
the woman is entitled merely to the service 
whatever may be lawfully received as a fixed 
stipulated in either of these cases ; because 
return, is capable of constituting a dower, 
since a mutual exchange may be thereby 
effected, and consequently the case is the 
same as if the man had married the woman 
on condition of a stated service to be per- 
formed by another person, or on a stipula- 
tion of himself watching her flocks for a 
stated period. The arguments of our doctors, 
on this point, are twofold : FIRST, the pos- 
session of a woman's person is not to be 
sought (that is to say, to desire, it is not 
lawful), except in lieu of property ; and 
teaching the Koran is not property ; neither 
does usufruct constitute property (according 
to the sentiments of our doctors), because 
that is not substant ; al or permanent, whereas 
properly is a thing of a permanent nature, 
and what constitutes actual wealth ; service 
therefore, ,not being property, to seek the 
possession, of a woman's person, in return 
for the services of a freeman, in unlawful : 
contrary to a case where a slave obtains a 
woman in marriage on the condition of his 
serving her, since here possession is sought 
for that which is actual property, the ser- 
vice of a slave being considered as such 
because this comprehends a surrender or 
delivery of the slave's person, and the 
person of a slave is actual property, and of 
course the usufruct thereof ; wherefore it is 
analogous tothe bestowing of the slave him- 
self a? a dower : but with a husband who is 
free this cannot be the case : SECONDLY, it is 
not lawful that a woman should be in a 
situation to exact the service of her husband 
who is a freeman, as this would amount to a 
reversal of their appointed stations, for one 
of the requisites of marriage is, that the 
woman be a* a servant, and the man as the 
person served ; but if the service of the 
husband to the wife were to constiute her 
dower, it would follow that the husband is 
as the servant and the wife as the served: 
and this being a violation of the requisites 
of marriage, is therefore illegal ; but it is 
otherwise with the service stipulated to be 
performed by another free person, with that 
person's consent, as this offers no violence to 
the requisites of the contract ; and so also 
in the case of service of a slave, because the 
service performed by a slave to his wife is, 
in fact performed to his master, by whose 
consent it is that he undertakes it ; and the 
same with the case of tending flocks, because 
this is a service of a permanent nature, and 
admitted to be performed for wives, and 
therefore does not violate the requisi es of 
marriage ; for the service of the husband to 
his wife, as a dower, is prohibited only as Jt 
may be degrading to the former : *but the 
tending of flocks is not a degrading office. 
Mohammed, according to his tenets, holtis as; 



48 



MARRIAGE. 



[VoL. I 



was already observed) that the woman is, in 
thU case, entitled to receive a sum amounting, 
to this estimated value of the service, because 
he maintains that what was stipulated (to 
wit, the service) is properly, but of such a 
nature as it is not in the husband's power to 
make delivery of, since by such an act he 
would violate the requisites of marriage ; 
the case, therefore, is the same as if a man 
were to marry a woman, assigning, as a 
dower, a slave, the property of another, in 
which case he would have to pay the woman 
the value of such slave, Haneefa and Aboo 
Yoosaf, on the other hand, hold that the 
woman is entitled to a proper dower ; be- 
cause they maintained that the service here 
stipulated is not property, as a woman can- 
not legally exact service of her husband, 
being a freeman, in any situation whatever 
lest a reversal of stations should be induced, 
as was just observed ; the naming, therefore, 
of service as a dower, is the same as naming 
wine, or a hog ; for, not being capable of 
legal delivery, it is not a subject of apprecia- 
tion ; and such being the case, resourse is 
had to the original rule in defect of any 
dower, and this dictates a proper dower. 

Cases of a wife remitting or returning the 
dower to her hushand, either wholly or in 
part. IF a man marry a woman on a dower 
of one thousand Dirms, and the woman make 
seisin of the said thousand, and then present 
the same to him, and he take possession of 
such gift, and afterwards divorce her before 
consummation, the husband, in this case, has 
a claim upon his wife for five hunderd Dirms, 
because he is not considered, in ^iw, as hav- 
ing received, in the form of the gift, that 
identical thing which becomes obligatory 
upon his wife in consequence of divorce be- 
fore consummation, since money is incapable 
of identification either in the fulfilment or 
the annulment of contracts. So also, if the 
dower consist not of money, but of articles of 
weight or measurement of capacity, as iron 
or copper. But if the wife were to make a 
gift to her husband of the thousand Dirms, 
without having herself been in possession of 
the same,* and he were afterwards to divorce 
her before consummation, in this case neither 
party has any claim vhatever upon the other. 
This proceeds upon a favourable construc- 
tion ; for analogy would suggest that the 
husband should receive from his wife the 
amount of half the dower, because the whole 
dower remains untouched with the husband 
in consequence of the gift, which amount to 
a discharge, but the wife do^s not appear to 
be discharged from wh?t becomes obligatory 
upon her in consequence of divorce before 
consummation. The reason for a more fa- 
vourable construction of the law upon this 
point is. that the identical thing which be- 
comes obligatory upon the wife in favour of 
the Icusband, in consequence of divorce before 

"That is to say, relinquishes her right to 
to it. 



consummation, has come to him, in his being 
discharged from half the dower (through the 
wife's gift), and the end being thus obatined, 
any difference in the manner in which it is 
obtained will not be regarded. that is to say. 
the end was, that the husband should recover 
half the dower after divorce before consum- 
mation, and that end has been obtained, not 
indeed through divorce, but through antece- 
dent gift, which answers the same purpose. 

IP a man marry a woman on a dower of one 
thousand Dirms and the woman make seisin 
of five hunderd Dirms, and afterwards make 
a gift to her husband of the whole thousand, 
as well of the portion in her possession, as 
of that which she has not received, or of the 
latter only, and the husband afterwards di- 
vorce her before consummation, neither party 
in this case, has an/ claim upon the other, 
according to Haneefa. The two disciples 
maintain that the husband has, in this case, 
a claim upon the wife for one half of that 
proportion of which she had possession ; be- 
cause they conceive of a part from the whole ; 
that is to say, if the wife were to make a 
gift of the whole dower to her husband, with- 
out having herself made previous seisin of 
any part thereof, the husband has no claim 
to resume anytning out of it ; anrl, on the 
contrary, if she were first to make seisin of 
the dower, and then to make a gift of the same 
to her husband, he would have a claim of 
resumption upon her for one half ; and con- 
sequently, when she has made seisin of any 
particular part or portion of it, has a claim 
of resumption upon her for the half of that 
part of which she had made seision; and again, 
on the other hand, because a gift of any part 
of the dower to the husband amounts to an 
abatement with respect to that part, and is 
therefore altogether excluded from the con- 
tract ;* and consequently, when the gift is of 
that half which had remained unseised, it is 
the same as if t*he contract Lad regarded the 
half ortly (as where a seller, for instance,, 
makes a gift of half the price of the commo- 
dity sold, in which case it is the same as it 
the price agreed upon were no more than the 
remaining half) ; and such being the case, it 
follows that the proportion of abatement (in, 
consequence of gift) becomes altogether ex- 
cluded from the dower, and that the half of 
which seisin had been made stands as the 
complete dower: and as, where seizin had 
been made by the wife of her whole dower* 
and she had presented the same to her hus- 
band, he would still (upon divorce before 
consummation) have a claim of resumption 
upon her for one half (as has been shown in 

*The phrase in the original is remarkable, 
"LEHAZA YEWLUKKO B'ASSIL AL AKID," 
'.'and therefore is connected with the origin 
of the contract;" that is to say, with a 
period antecedent to the contract, and conse- 
quently not included in it* The term here 
adopted appears to be the clearest by which 
the translator could express the sense. 



BOOK II. CHAP. III.] 



MARRIAGE 



a former case), so here, in like manner, he 
has a claim of resumption for a moiety of the 
seised proportion, that standing as the com- 
plete dower. The argument of Aboo Haneefa 
in this case is, that the end of the husband 
hath been already obtained, in a moiety of 
the dower remaining untouched with him 
without any return ; wherefore, upon divorc- 
ing his wife before consummation, he would 
have no occasion to make any resumption : 
and with respect to what the two disciples 
advance, that "an abatement becomes alto- 
gether excluded from the contract," it may 
be replied, if this were to be admitted, it 
would follow that, in a case where a man 
marries a woman on a dower of twenty Dirms 
(for instance), and the woman makes a gift 
to him of fifteen Dirms out of the twenty, 
ten Dirms would remain obligatory upon the 
husband ; because, the abatement being ex- 
cluded from the contract, it would be the 
same as if he had married her upon a dower 
of five Dirms ; and if he had married her 
upon such a dower, he would be bound for 
ten Dirms, on the principle of law, that if a 
man marry a woman on a dower of fewer than 
ten Dirms, ten Dirms arc obligatory upon 
him ; this idea would consequently lead to 
an unjust and unfounded conclusion, and is 
therefore inadmissible. 

IF a man marry a woman on a dower of one 
thousand Dirms, and she make a gift to him 
of a part less than the half two hundred, 
for instance, and take possession of the re- 
mainder, and the husband afterwards divorce 
her before consummation, he has, in this 
case (according to Aboo Haneefa), a claim of 
resumption upon her for such a sum as to- 
gether with what she had proyiouslv be- 
stowed upon him, mikes a moiety of the 
whole, namely (in the supposition before 
mentioned) three hundred Dirms: accord- 
ing to the two disciples, on the contrary, his 
claim of resumption is for the half of what 
the woman had made sei.nn of, namely, four 
hundred Dirms. 

The same when the dnwer consists of effects 
IF a man marry a woman on a dower con- 
sisting of certain specified effects, and she 
make a gift of the same to him, either before 
or after scir.in, and he afterwards divorce her 
before consummation, he, in this case, has no 
claim of resumption whatever upon the wo- 
rmn This proceeds upon -\ favourable con- 
struction. Analogy would suggest that he 
should have a claim to the amount of the 
value of half the effects, because here it be- 
comes obligatory upon the woman to make 
restitution of half the dower, as was already 
explained, and she is incapacited from mak- 
inn; restitution by delivery of half the actual 
effects, in consequence of her sift ; wherefore 
it would appear that she should make it by 
paying the estimated value of one half But 
the reason for a more favourable construction 
of the law in this case is, that the husband 
who is entitled to recover from the woman 
one half of what she had taken possession of, 
in consequence of his having divorced her 



before consummation, has already actually 
obtained this (through her gift) ; whence it 
is that the woman would not be at liberty to 
give her husband any other thing in lieu of 
those effects, because the consideration con- 
sists of a thing capable of identical specifica- 
tion, and of course the said effects, which 
have been in possession of the woman, and 
by her made over in gift to her busband, con- 
stitute a dower of a certain specific descrip- 
tion ; thus the husband appears to have 
received that actual thins which had been 
rendered obligatory upon the wife by divorce 
before consummation : contrary to the case 
of a dower consisting of a debt ; for here, if 
the wife were to make seisin of such debt, 
and then to make a gift of the same to her 
husband, and he afterwaads to divorce her, 
as above, he would, in this case have a claim 
of resumption upon her for the value of one 
half of the dower, because a debt of this na- 
ture is, like money, incapable of identical 
specification : and contrary, also, to a case 
where a woman, having taken possession of 
effects, as a dower (as was stated in the pre- 
ceding case), sell such effects to her husband, 
because, in this case, they have come back 
to him for a consideration and his claim is 
to the recovery of the half of her dower with- 
out any consideration. And if the dower 
consist of an animal, or of effects, which are 
a debt upon the husband,* the rule is the 
same as in the case of one consisting of 
specified effects ; x because the thing seised by 
the woman is of such a nature as, if she had 
herself borrowed it, must be restored by her 
in substance ; and articles of this description 
are all capable*>f identical specification. 

Cases of stipulation in behalf of the wife. 
IF a man marry a woman on a dower of 
one thousand Dirms, f on a condition that he 
is not to carry her out of her native city, 
or that he is not to marrv, during his 
matrimonial connexion with her, any other 
woman, in this case, if he observe the con- 
dition, the woman is entitled to the above 
specified dower only, as that consists of a 
sum sufficient to constitute a legal dower, 
and she has agreed to accept it ; but if he 
should infringe the condition, by either 
carrying her put of her native city, or marry- 
ing another wife, she id in this case entitled 
to "her proper dower, because he had acceded 
to a condition on behalf of the woman which 
was advantageous to her, and that not being 
fulfilled, the woman is nor supposed to be 
satisfied with the thousand Dirms, and must 
therefore be paid her complete proper dower ; 
the same as iij a case where a woman had 
agreed to accept of one thousand Dirms, as 
a dower, on condition of being treated with 



*That is to say, an animal, or effects, 
which had been borrowed or procured upon 
credit by the husband. * 

fThis case proceeds on the supposition of 
one thousand Dirms being of less valtie than 
the wo nan's pro;3er dower. 



50 



MARRIAGE. 



[VOL. I. 



reverence, and not subjected to any labouri- 
ous work ; or of being presented with a rich 
dress, and so forth. 

IF a man marry a woman, stipulating the 
dower at one thousand Dirms, provided he 
.should not carry her out of her native city, 
but stay and reside there with her,- or at 
two thousand, if he should carry her thence, 
in this case, if he continue to reside with 
her in the said city, she is entitled to the j 
thousand Dirms only; but if he carry her 
thence she becomes entitled to her proper 
dower, where that does not exceed two 
thousand, nor fall short of one thousand. 
This is according to Haneefa. The two dis- 
ciples say that both conditions are equally 
valid, insomuch that, as if he were to con- 
tinue to reside with her in the city aforesaid, 
she would receive the one thousand Dirms 
only, so if he carry her thence, she becomes 
entitled to two thousand. Ziffer, on the 
other hand, maintains that both the con- 
ditions are null and that the woman shall, 
in either event, receive her proper dower, 
where that does not exceed two thousand 
Dirms, nor fall short of one thousand This 
case is founded upon what occurs in the book 
of Hire, where a man says to a tailor, "If 
you make me up this robe within the day, I 
shall pay you one Dirm; or if you finish it 
by to-morrow, you shall have half a Dirms ;" 
as will be hereafter explained. 

Cases of a dower consisting of property 
unidentified If a man marry a woman, 
agreeing to give her, as a dower, either of 
two slaves unspecified, as if he were to say 
"Make one of these two the dower "and 
the slaves be of different value,-*-in this case, 
where the woman's proper dow'T is under 
the rate of the slave of less value, she re 
ceives that on ; or if it exceed the rate of 
the more valuable slave, she receives that I 
one ; and if it exceed the former, and fall 
short of the latter, she then receives h?r 
proper dower. This is according to Aboo 
Yoosaf The two disciples allege that the 
least valuable slave goes to her, in all these 
circumstances. But if the husband divorce 
her without consummation, she in that case 
becomes entitled to half the price of the least 
valuable slave only, according to all the doc- 
tors. The argument of the two disciples, in 
this case, is that the proper dower is not to 
be held obligatory, unless where the stipu- 
lated dower is of such a nature as renders an 
obligation with respect to that impossible ; 
but it is possible with respect to the le?sf 
valuable slave, because that one is un- 
doubted,* and is therefore obligatory ; the 
same as in a case of Khoolaf or of manu- 
mission, for a compensation "of one thou- 
sand, or of two thousand," or "of this slave, 



or of that slave;"* in which case, whatever 
is the least value named is held to be the 
compensation either for Khoola or for manu- 
mission, as there can be no doubt concerning 
it ; and so in this case also. The argument 
of Haneefa, in reply to the two disciples, is 
that the proper dower is the radical obliga- 
tion in a contract of marriage, like the price 
of a purchase, in a contract of sale, as that 
is the most equitable, being a medium ad- 
justment neither over nor under, and conse- 
quently it is not to be deviated from, except 
in cases where the specification of the dower 
is perfect and complete ; but here the speci- 
fication is not complete, since neither slave 
has been particularly mentioned by the hus- 
band, in settling the dower, but both indefi- 
nitely : contrary to a case of Khoola or of 
manumission for a compensation, since in 
neither of these is there any radical compen- 
satory obligation understood, independent of 
some particular previous agreement ; for if 
a slave were to say to his master, "emanci- 
pate me," and the master were to reply 
"thou art free " or if a wife were to say to 
her husband, "grant me Khoola," and the 
husband were to reply, "I have granted 
Khoola," no obligation whatever would re- 
main upon the slave or the wife ; whereas 
on the contrary, if a woman were to say to a 
man, " marry me," and he were to reply, "I 
have married you, "her proper dower would 
be incumbent upon him : but where the rate 
of the more valuable slave falls s'.iort of the 
proper dower, the wife has yirtually acceded 
to the abatement : and, in like manner, 
where the rate of the least valuable slave 
exceeds the proper dower, the husband has 
virtually agreed to the excess ; and she then 
receives one or other of the slaves, as the 
case may be. It is here to be observed that 
if divorce take place before emancipation, 
the wife is to receive from her husband a 
present in Addition to half the price of the 
least ..valuable slave : this is a rule estab- 
lished t by custom, and must be complied 
with, as an obligation on the part of the hus- 
band, although the value of the present 
should even exceed the half price of such 
slave. 

Or undescribed -If a man marry a 
woman, assigning her, as a dower, an ani- 
mal undescribed, it is approved, and the 
woman shall receive an animal of a middling 
standard ; but the husband has it at his 
option instead of this, to pay her the value of 
such an animal in money. The compiler of 
the Hedaya observes that this is to be un Jer- 
stood only where a man names the species of 



That is to say, although, with respect to i 
the slave of greater value, a doubt might be | 
entertained, ye t w jth respect to the other I 
there can be none, since that is the lowest ! 
buffered by the party himself. ! 



* This relates merely to the point of lav 
in case of vague and indefinite expression ; 
for instance, in Khoola, where the wife may 
say to her husband, "I will give you one or 
two thousand Dirms, or either of my slaves, 
Zeyd or Amir, for my divorce," in which 
case the law always determines the proposed 
compensation at the lowest value mentioned. 



BOOK II. CHAP. III. 



MARRIAGE. 



51 



the animal in general, without any specific 
description (as if he were to say, "I will 
give you as a dower a horse," or "an ass," 
without describing whether it is to be an 
Arabee or a Tcorkee) ; but where he does not 
mention the species of the animal (as if he 
were to say, "I will give, as a dower, a 
quadruped"), it is not lawful, and he in that 
case becomes liable to make good to the 
wbman her proper dower. Shafei maintains 
that a proper dower is obligatory in either of 
the above cases, he holding that nothing 
is fit to be assigned as dower, in a contract 
of marriage, but what would he capable of 
appreciation in a contract of sale ; and an 
animal underscribed, ia incapable of apprecia- 
tion, as being unknown, and consequently 
cannot constitute a dower The argument of 
our doctors is, that a contract of marriage 
includes an exchange of property for that 
which is not property (for the use of the 
Woman's person, which is the ie turn, cannot 
be termed such) : now the law admits that 
animals may be a debt upon the person, in 
the course of an exchange, where th.re is no 
property in return, as in the case of Deeyat, 
where an hundred camels are rendered obli- 
gatory in law, their description being unde- 
fined: the dower is therefore to be considered, 
in this respect, a*, a property, conctrning 
which the man has taken an obligatic n upon 
himself a priori, in the manner of an ac- 
knowledgment : now ignorance, with respect 
to the actual property, does not invalidate an 
acknowledgment by which a person takes 
upon himself a priori, an obligation concern- 
ing it ; as for example, if a person were to 
acknowledge that he owed a slave, or any 
thing else undescribed, his acknowledgment 
would be good, and the specification would 
rest with him. 

OBJECTION. If the nomination of a dower 
be to stand the same as an acknowledgment, 
it follows that the nomination of an animal 
on account of dower is approved, although 
the species remain unknown, the same as 
in an acknowledgment respecting property 
'unknown. which is not the case. * ' 
, REPLY. A knowledge of the species of the 
animal is made a condition, in conformity 
with the rule, that a specified dower shall 
consist of property, the medium of which 
may be known, for the sake of both the 
parties ; now this cannot be ascertained, 
except where the species is unknown, which 
comprehends a best, a worst, and a medium 
of the kind, for if this be unknown, the 
distinction cannot be made, since no medium 
can be ascertained amidst an infinite variety 
of species. But (as was already observed) 
the husband has it at his option, in dis- 
charging the dower, either to give the woman 
a medium animal of the species mentioned, 
or to pay her the value in money, because 
the medium cannot be ascertained precisely 
except by appreciation, and consequently 
the value of the %nimal is the standard 
of pay me at ; and, on the other hand, the 



actual animal is the standard according to 
nomination. 

IF a man marry a woman, assigning her a 
dower of cloth, undescribed, she, in this 
case, receives her proper dower. This is 
where the term cloth alone is mentioned by 
the man without any addition ; and the 
reason is, that the species of cloth is here 
unknown and una&certamable , since of that 
there are a variety of species. But if he 
were to name the species of cloth, as if he 
were to say, "I will give, as a dower, a piece 
of Hirrooey,"* this manner of description 
is approved ; and the husband has it in his 
option eithur to give a piece of Hirrooey of 
a middling quantity, or to pay the value in 
cash, for the reasons already stated. In like 
manner he has it at his option either to give 
the cloth or to pay the value, where he has 
been still more particular, in his description, 
mentioning the length, breadth, and quality 
of it, in a way such a would suffice in a 
Sill i m sale. This is* according to the Zahir 
Rawayet ; and the ground upon which it 
proceeds is that cloth is not of the class 
of things denominated Zooatal-Imsal, or 
things compensaale by an equal quantity of 
the same species. In like manner he shall 
have i he same option where the dower is 
assigned of goods, the quantity of which, is 
asccrtamable by weight or measure, provided 
he should not have' particularly described 
the quality, but only the species : but if he 
should particularly describe the quality, he 
then has no option, and must pay the actual 
thing mentioned, because, under such de- 
scription, it becomes a debt upon him, of 
the specific wcighable or measurable articles 
described. 

Case of a Aower consisting of unlawful 
artic/es. IF a Mussulman marry a woman, 
agreeing to give her, as a dower, wine or a 
hog, the woman has her proper dower, because 
a condition of assenting to receive such ar- 
ticles is invalid ; but as a contract of mar- 
riage is not rendered null by a nugatory 
condition being comprehended in it, it holds 
good, in this Cise, though the condition be 
null : contrary to a case of sale, which is 
rendred null by an invalid condition. The 
assignment of the dower in either of the 
articles aforesaid is disapproved, because 
what is named is not property with Mussul- 
mans ; and on this principle it is that a 
proper dower becomes due. 

Cases of false assignment. !? a man 
marry a woman, assigning her, as a dower, 
a cask of vinegar, and the cask should 
afterwards appear to contain wine, she, in 
this case, has her proper dower, according to 
Haneefa. The t two disciples allege that, in 
this case, she is to receive vinegar of a 
medium quality, and the same in quantity 
as the wine, And if the man were to name, 
as a dower, a certain specified slave (as if 



* A particular species of cloth manufca* 
tured in Herat, a city of Khorasan. 



52 



MARRIAGE, 



[VOL I. 



he were to say, "I assign this slave as a 
dower"), and it should afterwards appear 
that the person so mentioned as a slave was 
at that time free, to this case a proper dower 
is due, according to Haneefaand Mohammed. 
Aboo Yoosaf says that here husband 
owes the estimated value of the free person 
aforesaid, supposing he were a slave ; for he 
argues that the man has filled the woman 
with the expectation of a certain property, 
the delivery of which he afterwards finds 
impossible ; the value therefore is obligatorv 
upon him, or an article similar to that agreed 
for, if it be of the species of Zooatal Imsal. 
as in a case where a man marries a woman 
on a dower consisting of a specified slave. 
and the slave dies before delivery Aboo 
Haneefa, on the other hand, savs, that 
where nomination and pointed reference* 
are united, regard must be had to the latter, 
because indication is more clear and exoress 
under that form, and hence the case is the 
same as if the man had engaged to give, as 
a dower, wine or a hog,t Mohammed (coin- 
ciding with Haneefa with respect to the 
slave, and dissenting from, him with respect 
to the vinegar, as aforesaid) says that it is 
a rule, that if the thing named be of the 
same species with the thing specified bv 
pointed reference, the contract is connected 
with the latter : but if the thing named be 
of a species distinct and different from the 
thing pointedly specified, it [the contract] is 
connected with the thing named ; because 
indication is more effectual from naming a 
thing, than it is from pointing that thing 
out, inasmuch as it is therebv known what 
that thing is, whereas by pointing it out the 
substance only is known : on w^hich principle 
it is that if a man purchase a ring; stone, on 
the condition of its being a rubv, and it 
should prove to be only a garnet, the bargain 
is void, on account of the difference of spe- 
cies ; but if a person were to purchase a 
stone on condition of its being a rubv, and 
it should prove to be an emerald, yet the 
bargain holds good, because these are held 
by lapidaries to be of the same species : 
now, in the present instance, the slave and 
the free person are of one and the fame 
species : the contract, therefore, is connected 
with the thing identically specified or pointed 
out, and on this principle her proper dower 



*Tasmeeat and Isharet : the former term 
means simply naming a thing, or (as ex- 
pressed above) nomination ; by the latter is 
understood pointing a thing out, such as 
"This slave/' &c. 

fThis is to say, the condition is altogether 
void, and a proper dower is of course due ; 
for if the man were to say, "I will give as a 
dower this slave," and the person so spoken 
of should appear to be free, it is evident 
(regard being had to the relative "this," 
demoting pointed reference) that the con- 
dition os agreement is ipso facto null, as 
regarding a thing which does not exist. 



is due to the woman ; but wine and vinegar 
being of distinct species, and totally different 
from each other (inasmuch as the latter is 
lawful in use, and the former prohibited) 
the contract is there connected with the 
thing nominally specified, and consequently 
the woman is entitled to vinegar equal in 
quantity to the wine. 

IF a man mairv a woman, agreeing to give 
her, as a dower, two slaves specified, as if he 
were to say, f 'I assign, as a dower, those two 
slaves ;" and it should happen that one pt 
j the persons so specified as slaves is free, in 
| this case, according to Haneefa, the woman 
is not entitled to more than the single slave 
retraining, provided the value bo equal to 
ten Dirms, because the slave is particularly 
| assigned, and where the assigned dower is 
admitted to be incumbent, this prohibits the 
obligation to proper dower: as where a 
man, for instance : marries a woman, assign- 
ing her, as a dower, a piece of cloth ot the 
value of five Dirms, in which case the 
woman gets the piece of cloth aforesatH- 
together \vith five Dirms in money, in such a 
manner as that the whole shall amount to 
ten Dirms, being the lowest legal dower, 
beyond which nothing is incumbent. Aboo 
Yoosaf alleges that, in this case, rhe woinin 
gets the slave, together with the amount of 
the estimated value of the other person, 
supposing he were a slave, because here the 
man has filled her with expectation of two 
slaves, the delivery of one of which after- 
wards appears to be impossible ; wherefore 
the value of the latter is obligatory upon 
him. Mohammed has said (and there is also 
onri opinion recorded ot Manet-fa to the s,ime 
effect) that the woman j^ts the salve, together 
with a property sufficient to complete her 
proper dower, if thai should exceed the value 
of the salve ; because, if both the persons 
named as slaves by the husband, in speci- 
fying the dower, were actually free, the 
whole proper dower (according to Moham- 
med) would T>e due ; and consequently, where 
one only is a slave th-it slave is ^due, together 
with such property as (along with the slave) 
amounts to a proper dower. 

A woman iy not entitled to any dower 
under an invalid marriage dissolved brf le 
consummation. IF the Kazee separate a man 
from his wife, before cohabitation, on account 
of their marriage being invalid, the woman 
is not entitled to any part of her dower, be- 
cause, where the marriage is invalid, ro 
obligation with respect to dower is involved 
in the contract, as that, in such a case, is also 
null ; nor is the dower held to be due on any 
other ground than the fruition of the connu- 
bial enjoyment, which is rot found in .the 
present instance In the same manner no 
dower is due after Khalwat Saheeh, or com- 
plete retirement, because, on account of the 
invalidity of the marriage, the law does not 
consider retirement as indicating the com- 
mission of the carnal act, rfnd consequently 
it does not stand as such. It is, however, to 
b^ observed that in an invalid marriage a 



BOOK II. CHAP. III.] 



MARRIAGE. 



*53 



separate dower is not due on account of 
everv repetition of the - carnal act, because 
here the right of possession is doubtful, and 
the case is 'therefore the same as where a man 
has repeated carnal connexion with the slave 
of his son, or where a man has repeated 
carnal connexion with his wife, and it should 
afterwards appear that he had suspended the 
divorce of that woman upon the circum- 
stance of his marrying her, in either of 
which cases one dower only is due, because of 
a doubt respecting the right of possession ; 
contrary to a case where a man has repeated 
carnal connexion with the slave of his father, 
his mother, or his wife and pleads hii con- 
ception of the same being lawfu 1 ; for in 
this case a dower is incumbent xipon him for 
every repetition of the act, because here no 
doubt exists, as he appears, on every repe- 
tition, to have had carnal connexion with a 
slave who is the absolute property of another: 
and, contrary also, to a caae where a man 
has repeated carnal connexion with a frmale 
slave held in partnership between himself 
and another, for in this case an half fine is 
jncumbent upon him for every repetition 
(a:cordinT to the determination in the Hur- 
hanal Aim* of Abdul- azeez-Iim Amroo), 
because' he ha every lime committed the 
carnal act in the share of his partner. 

But in case of romumnuziion, she M 
entitled to her proper dower, not exceeding 
what is specified in the contract. IF a man 
engage with a woman in an invalid marriage, 
and have carnal connexion with her, she is 
in this case entitled to her proper dower : 
but she is not entitled to more than the 
sivcified dower, *according to our doctors. 
This is contrary to the oninion of Ziffcr, who 
conceives an analogy between this and an 
invalid sale, that is to say, in an invalid 
sale, if the stipulated price of the thing sold 
be short of its actual value the latter is due 
to whatever amount ; and so also in the 
present c:a*e. The argument of o\ir doctors, 
in this case, is that the thing which' the 
husband has received (namely, the pos&ession 
of the woman's person) is not property, and 
therefore is not appreciable in any other way 
than by the assignment of a dower; now if 
a dower assigned should exceed the proper 
dower, the excess is not incumbent, because 
of the invalidity of the assignment, for that 
is a part of the contract, which being invalid, 
the assignment is so likewise, and, oil the 
other h-md, if the dower assigned be short of 
the proper dower, the difference is not incum- 
bent because, with respect to that, assign- 
ment has not been made ; contrary to an 
invalid sale, because there the thing sold is 
appreciable, and consequently the amou-it of 
the return will be adjusted by its value. 



That is to say, if her proper dower 
s'aould exceed in vakie the dower specified in 
the .contract, yet tRe woman is entitled to 



. 

the specified dower 
roper dower. 



only, and not to her 



And she must observe an Edit after sepa- 
ration. THE observance of an Edit, after 
separation, is in-cumbent upon a woman with 
whom a man has had carnal connexion in an 
invalid marriage. And here the Edit is to 
commence as from the date of separation, and 
not from that of the last carnal connexion. 

A child born in on illegal marriage is of 
established descent. THE descent of a child 
born of a woman enjoyed in an illegal 
marri'ige is established [in the reputed 
father], because in this, regard is had to the 
child's preservation, since if the descent were 
not to be established, the child might perish 
for vvint of care. Mohmmcd holds (and 
decrees are pas.ed agreeable to this doctrine) 
that, in the establishment of genealogy 
undiT an invalid marriage, the time* is 
calculated from the first carnal connexion, 
not from the date of the marriage, because 
one which is invalid does not give a claim to 
the carnal act, so as to stand as such, where- 
as the reverse is the case in a valid marriage, 
as that establishes such claim : and hence, in 
he establishment of genealogy, the time is 
calculated from the date of the marriage. 

Rat? of the Mi/rr Xfts/, or proper dower 
THE Mihi Misl (or proper dower) of any 
woman is to be regulated , in its amount or 
valui*, by that of the dower of her paternal 
relations, such as her paternal sister or 
aunts, or the daughter of her paternal 
uncles, and so forth, according to a precept 
of Ibn Mussaood, "To the woman belongs 
such a dow r as is usually assigned to her 
female pitrrnal relatives :" moreover, men 
aie accounted of the class of their peternal 
tribe, and tlie value of a thing cannot be 
estimated but by attending to the value set 
upon its class. 

A WOMAN'S prooer dower is not to be 
e.st invited by the dower of her mother or her 
maternal aunt, where they are not descended 
of her father's family, on account of the 
precept of Ihn Mussaood already recorded ; 
vet if her mother should be descended of her 
father's family (being for instance, the 
.'laughtor or his paternal uncle), in this case 
a judgment may be formed from her dower, 
as ht'ing descended from the family of the 
father. 

TN regulating the proper dower of a 
woman, attention must be paid to her 
quality with the womnn from whose dowers 
the rule is to be taken, in point of age, 
beauty, fortune, understanding, and virtue, 
because it varies according to any difference 
in all these circumstances : and, in like 
rnanner.it differs according to place of resi- 
dence, or time (that is to say, times of trouble 
and confusion, as opposed to time to tran- 
quality) : and the learned in the law have 
observed that equality is also to be regarded 



The probable term of pregnancy, 
which the child's descent is to be judged o 
and ascertained, (For a further elucidation 
of this point see Book of Divorce, Chap. X4II.) 



54 



MARRIAGE. 



VOL. 1. 



in point of virginity, because the dower is 
different according as the woman may be a 
virgin or otherwise. 

A woriian's guardian may become surety 
for her dower. IF the Walee [guardian] of a 
woman become surety for her dower, it is 
approved, because he is competent to such 



responsibility (that is, to take such obliga- 
tion upon himself), and he is surety in a 
thing which is a legal subject of bail 
(namely, 'the dower), since that is a debt, in 
which bail is approved : and the woman is 
afterwards at liberty to require her dower 
either of ner husband or of her guardian, as 
in all other cases of bail: and if the guar- 
dian pay the dower, he shall take the same 
from the woman's husband, where he has 
become surety at his desire, as is the in- 
variable rule in bail. The bail is like 
manner approved, if the wife be an infant : 
contrary to where a father sells the property 
of hii infant child, and becomes bail for the 
amount, which is not lawful, because a 
guardian is, with respect to marriage, a ne- 
gotiator merely ; but in sale, he is the exe- 
cutor of the contract (whence it is that its 
obligations rest upon him, and its rights 
appertain to him) ; and the father's discharge 
is also approved, if he clear the purchaier of 
the whole price of the infant's property ; and 
ke is moreover at liberty to take possession 
of the price after the infant shall have 
attained maturity ; wherefore, if his bail 
were to be approved, it would admit the 
principle of a man becoming surety in his 
own behalf, which is absurd. 

OBJECTION. A father is at liberty to take 
possession of the dower of^ his infant 
daughter, in the same manner as of the 
price of his infant child's property ; where- 
fore if the ball of the father with respect to 
the dower be approved, it follows that he is 
bail in his own behalf. 

REPLY. The authority vested in a father 
to take possession of the dower is because of 
his parental relation, and not on account of 
,hisbeinga party in the contract (for which 
reason it is that he is not at liberty to take 
possession of the dower after the maturity of 
his child), so that he does not in this case, 
appear to be bail in his own behalf. 

A woman may resist consummation until she 
be paid the prompt proportion of the dower. 
A WOMAN may refuse to admit her husband 
to a carnal connexion until she receive her 
dower of him, so as that her right may be 
maintained to the return, in th same 
manner as that of her nusband to the object 
for which the return is given, as in sale. 

A WOMAN is also at liberty to resist her 
husband carrying her upon a journey until 
she shall have received her dower of him, 
for the same reason 

ON the other hand the husband has no 
power to restrain hU wife from going on a i 
jotirney, or from going abroad, or visiting 
her friends, until such time as he shall have 
'discharged the whole of the Mihr Moajil, or 
prompt dower, because a husband's right to 



confine his wife at home is solely' for* the sake 
of securing to himself t/ie enjoyment of her 
person, and his right to such enjoyment does 
not exist until after the payment of the re- 
turn for it. 

Unless the whole dower be deferable, 
WHAT is here advanced proceeds upon a sup- 
position of the whole dower, or a certain 



portion of it, being Moajil, or prompt ; but 
if the whole be Mowjil, or deferred,* the 
woman is not at liberty to refuse the em- 
braces of her husband, as she has dropped 
her right by agreeing to make her dower 
Mowjil, - the same as in a case of sale, where 
if the price of the article sold be made de- 
ferable, the seller is not at liberty to detain 
the article sold on account of the price. 
Aboo Yoosaf controverts the doctrine which ' 
is her advanced, and maintains that, in 
this case also, the wife is at liberty to reiusc 
to admit her husband to carnal connexion, 
as long as he omits to make payment of the 
dower. 

And she may also resist a repetition of the 
connexion, alter consummation, in the like 
circumstances. IT is further to be observed, 
that even if the husband should have com- 
mitted the carnal act, or should have been in' 
complete retiremens with the wife, yet the 
rule is the same ; that is to say, she is still 
at liberty to refuse to admit him to carnal 
connexion, or to resist his carrying her 
upon a journey, until such time as she shall 
have received the whole of her prompt dower 
from him. This is the doctrine of Haneefa. 
The two disciples, on the contrary, allege 
that the woman, in this case, has no such 
liberty of refusal or resistarce. It is to be 
remarked, however, that this difference of 
opinion subsists only where the original 
carnal act, or complete retirement, has taken 
place with the woman's consent ; but if she 
have been enjoyed by force, or if she be an 
infant or an idiot, her right of refusal or re- 
sistance, as sfbove, does not cease, according 
to the* united opinion of all our doctors. 

But She ts, notwithstanding, entitled to her 
subsistence. IT is proper to observe, that 
where the woman refuses to admit the hus- 
band to a repetition of the carnal act, as 
above stated, yet she has, nevertheless (ac- 
cording to Haneefa), a claim to her subsis- 
tence, as her rufusal does not, in this case, 
proceed from tiny stubbornness or disobe- 
dience since it is not exerted in resistance 
to a right, but rather in maintenance of one. 
The two disciples hold that she is not 
entitled to any subsistence; and their argu- 
ment on this occasion is, that the sole object 
of the contract has been duly delivered to 
the husband, either by the single carnal act, 
or by the single complete retirement, as 
aforesaid ; on which account it is that her 
right to her whole dower is confirmed a'rid " 



*TViatisto say, if tty; stipulation fixes 
the payment of the dower at some future 
period, as a year, or so forth. 



BOOK II. CHAP. III.] 



MARRIAGE. 



55 



established, and consequently no right of 
further detention of her person remains with 
her : as in a case of sale, where the seller 
having delivered the article sold to the 
purchaser, before receiving the price, has no 
further right over it. Haneefa, on the other 
hand, reasons that the woman in resisting 
refuses and withholds a thing which she has 
opposed to a return, and over which she has, 
of course a right of detention, until such 
return shall have been duly made to her : 
and with respect to what the two disciples 
allege, that "her right to her whole dower 
is confirmed and established by the single 
carnal act, and so forth/' it may be replied, 
that the whole becomes confirmed to her by 
a single commission of the carnal act, or 
a single instance of complete retirement, 
necessarily, because every thing beyond that 
is then unknown, and consequently cannot 
obstruct the operation of what is known ; 
but the right of resistance still remains be- 
cause the dower is opposed to the whole, the 
same as to the single instance, of enjoy- 
ment, 

The husband obtains full authority over his 
wife upon payment of her dower. WHEN 
the husband has duly paid to his wife the 
whole of her dower, he is at liberty to cirry 
her wherever he pleases, because tSe word 
of GOD says, "YE SHALL CAUSE TFJEM TO 

RESIDE IN YOUR OWN HABITATIONS." Some 

have alleged that the husban i is not at 
liberty to carry his wife to another city 
different from her own, although he should 
have pcu'd her the whole dower, because 
journeying and travelling may be injurious 
t > her ; but he is at liberty to carry her to 
the villages in the vicinity of her city, as 
this does not anijunt to travelling. 

Cases of dispute between the parties con- 
cerning the amount of dowir. IF a man 
marry a woman, and they afterwards dispute 
concerning the rite :>f her dower, 'the de^cla- 
ration of the wife is to be credited to "the 
amount of her proper dower, and that o'f the 
husband, with respect to any excess. This 
proceeds upon a supposition of his having 
had carnal connexion with her : but if he 
should have divorced her before consumma- 
tion, his declartion alone is to be credited 
with respact to the half dower. This is the 
doctrine of Haneefa and Mohammed. Aboo 
Yoosaf alleges that the declaration of the 
husband is^ to be credited, whether before 
divorce or after, unless where it goes to 
establish something trifling, that is to say, 
something so small as is known to be short 
of what such a woman has a richt to expect 
in marriage according to general usage ; and 
this is approved. The argument of Aboo 
Yoosaf is that, in the case in question, the 
woman is plaintiff suing for an excess, 
and the husband defendant ; and the 
declaration of a Defendant, when made 
upon oath* is to be credited ; wherefore 
that of the husband, in the present in- 
stance, must be so, unless he testify to some- 
thing so small as that apparent circumstances 



argue against him : and the ground upon 
which this proceeds, is that the appreciation 
of the woman's person is a matter of neces- 
sity ; and, therefore, so long as it is possible 
that anything can be decreed from the stipu- 
lated dower, the proper dower is not regarded. 
The argument of Haneefa and Mohammed 
in this case is that, in all claims, credit must 
be given to the declaration of that person in 
whose favour apparent circumstances bear 
testimony, and apparent circumstances do 
bear testimony with one who attests the 
proper dower, as that is the standard ob- 
ject in marriage: similar to a case where 
dispute arises between a dyer and the owner 
of a piece of cloth, concerning the charge for 
dying, in which case the declaration of that 
person will be credited in whose behalf the 
value of the dye or colour bears testimony * 
Concerning what is here advanced, that "if 
the husband should divorce his wife before 
consummation, his declaration alone is to be 
credited with respect to the half dower ;" it 
is to be observed that this (which is recorded 
by Mohammed in the Jama Sagheer and 
Mabsoot) apparently contradicts what he has 
advanced in the Jama Kabcer, to wit, that 
"the woman must, in this case, be decreed a 
proportionable Matat, or present" (which 
is conformable to the inference of Haneefa 
and Moh mimed, who hold that, as a present 
is due, on account of a contract of marriage, 
after divorce, the same as a proper dower, 
before divorce, the one must be decreed her 
in the for ner case, as well as the other in 
the latter i ; but this apparent contradiction 
between the :ib^ve authorities' may be recon- 
ciled by adverting to the different manner in 
which the case is put in them respectively; 
thus, in the Mabsoot, the case supposes one 
thousand Dirms and two thousand, that is 
to say, the husband declares that the dower 
is only one thousand Dirms, and the wife 
claims two thousand ; now the value of a 
customary present does not equal the half 
of those sums, of course, to decree a 
present hre would be no advantage to the 
plaintiff: in the Jami Kabeer, on the 
other hand, the case supposes ten Dirms, 
and one hundred Dirms that is to say, the 
husband averts the dower to be only ten 
Dirms. and th? wife claims one hundred 
and her proper t present may be estimated,' 
suppose at twenty Dirms ; here therefore 
a proper present may with propriety be de- 
creed to her : and what occurs upon this sub 
ject in the Jama Sagheer being destitute of 
any mention of the amount of the dower 
that rests upon vjhat is said in the Mabsoot. ' 



Because, as different colours bear a dif- 
ferent price, the value of the colour used is 
certainly the only standard by which the 
amount of the charge for dying can be* 
judged of. 

fArab, Misl: that is, proportionable to her 
rank and circumstances, in the same manner 
as the proper dower. 



56 



MARRIAGE. 



[VOL. L 



As a more full exposition of the doctrine 
of Haneefa and Mohammed, in a case where 
a dispute arises between the husband and wife 
concerning the amount of the dower on the 
continuance of the marriage, let us suppose 
that the husband declares one thousand 
Dirms, for instance, and the wife claims two 
thousand, in which case, if the proper dower 
of the woman do not exceed one thousand, 
the declaration of the husband is to be cre- 
dited ; but if it be two thousand, or upward, 
that of the wife j ^and whoever of the two 
produces evidence in support of his or her 
declaration, the same is to be credited, under 
either of the above circumstances ; and if 
they both produce evidence under the first 
of the above circumstances (that is, the 
woman's proper dower not exceeding one 
thousand pirms), the evidence on the part 
of the wife is to be credited, because by 
such evidence her right to the excess is estab- 
lished ; but if, under the second (that is 
the woman's proper dower be?ng two thousand 
or upwards), the evidence on the part of the 
husband is to he credited, because that goes 
to prove that the wife has made an abate- 
ment in her dower : but if the proper dower 
be one thousand five hundred Dirmg, both 
parties must be required to make oath, after 
which one thousand five hundred are to be 
decreed to the woman. This is according to 
the Takhreej of Razi. Koorokhee says that 
the oath must be tendered to both parties in 
all the three circumstances, after which the 
proper dower must be decreed. All this ao- 
plies to a case where the husband and wife 
dispute with respect to the amount of the 
dower itself, and not with resnect to its speci- 
fication : but if their dispute respect the latter 
one of the parties asserting that a dower had 
been named, and the other denying, in this 
case the proper dower must be decreed, ac- 
cord inq to all the doctors, that being the 
original dower, independent of any specifi- 
cation. 

Or between one nf the parties, and the 
heirs of the other. IF, after the death of 
the husband or wife, a dispute should arise 
between the survivor and the heirs of the 
deceased, concerning the amount of the 
dower, the rule in this case is the same as 
when the dispute arises between the parties 
during life, because a claim to the woman's 
proper dower does not cease in consequence 
of the demise of either. 

Or between theheirs of both parties. AND 
if both husband and wife were to die, and a 
dispute to arise between their<_ heirs with re- 
spect to the amount of the dower, in this 
case the declaration of the husband's heirs 
shall be credited, although they should de- 
clare a sum less than the usual and customary 
dower of such a woman as the wife deceased. 
cr-This is according to Haneefa. Mohammad 
holds that the rule is the same here as where 
the dispute arises between the parties during 
life./And if the heirs dispute with respect 
to the specification of the dower, one party 
' insisting that a dower had been named, and 



the other denying, the declaration of the 
latter is to be credited, according to Haneefa, 
In short, with Haneefa, the woman's proper 
dower is not at all regarded after the decease 
of both parties, as shall be hereafter demon- 
strated. The two disciples on the other hand, 
maintain that the proper dower should in 
that case be decreed. 

The heirs of a deceased wife may take the 
amount of the specified dower out of the de* 
ceased husband's property. IN case of the 
death of both husband and wife, it belongs 
to the heirs of the latter to take the dower 
out of the estate of the husband, where it 
has been specifically named : but if it should 
not have been specified, they cannot claim 
anything whatever, according to Haneefa, 
The two disciples maintain that woman's 
heirs are entitled to her dower in either case, 
that is to say, to the pecified dower, in the 
former case, or to the woman's proper dower, 
in the latter ; in the former, because the 
specified dower was a debt upon the husband, 
confirmed by the circumstance of his decease, 
and consequently must be paid out of his 
estate, unless it should be known that the 
wife had died first, in which case the 
husband's portion of inheritance would droD 
from the dower [that is, must be deducted 
from it] on account that he also is an heir; 
and, in the latter, because the woman's 
proper dower had become a debt upon the 
husband, the same as a specified dower, and 
therefore does not drop in consequence of his 
death, any more than where onlv one of the 
parties dies. Haneefa argues that, in this 
case, a supposition of the death of both 
husband and wife affords n conclusion that 
their peers and contemporaries are alrea-ly cut 
off by death, and no longer remain, because 
it is most probable that they would not both 
die until after a length of time; and after 
the lapse ofsuch a period, their peers and 
contemporaries no longer remaining, from 
whom* can the Kawzee judge of or decide 
what the value of the woman's proper dower 
ought to be ? Haneefa, however, holds also 
that where the husband and wife both happen 
to die before the lapse of any length of time, 
so as that their peers and contemporaries are 
still remaining, her heirs are entitled to her 
proper dower. 

Case of a dispute concerning articles sent 
bv a husband to his wife IF a husband were 
to send anything to his wife, and she were 
to denominate it a present, while he asserts 
that he has given it in part payment of her 
dower, in this casp the declaration of the 
husband must be credited, because he is the 
giver, and consequently must be supposed 
to know his own intentions best ; moreover, 
it is evidently the business of the husband to 
liquidate the obligation which lies against 
him before he proceeds to p?rform gratuitous 
acts; his declaration, therefore, must be 
credited, except where the thing sent con- 
sists of victuals ready dressed for eating (such 
as roasted, or boiled, or stewed, and so forth), 
in which case the assertion of the woman 



BOOK H.CHAP. III.] 



MARRIAGE. 



57 



must be credited, because it is usual and 
customary for husbands to send such articles 
as presents to their wives, not counting it in 
the dower ; but in respect to wheat or barley, 
the declaration of the husband should be 
credited for the reason above mentioned. 
Some have observed that articles, the supply 
of which is generally held incumbent upon 
the husband, such as shifts, and rob as, and 
veils, are not to be counted in the dower, 
apparen circumstances arguing against 
thit 

Section. 

O Me a^iver of infidel subjects and of 
aliens, where none has been stipulated, or 
where it consists of carrion. IF a Christian 
man marry a Christian woman without stipu- 
lating any dower, or marking it consist of 
carrion,* such as may be deemed lawful by 
those of their profession, and have carnal 
connection with her, or divorce her before 
consummation, or die and leave her, the 
woman is not entitled to any dower what- 
ever, although both parties should have 
embraced the faith within the interim And 
the law is the same where the parties are 
aliens married on like terms in a foreign 
country. The opinion of the two disciples 
concerning aliens as the same as that of 
Aboo Haneefa; but with respect to Christians, 
being Zimmees (that is, subjects of the 
Mussulman government), they hold that the 
woman is entitled to her proper dower, where 
the husband either consummates the marriage 
bv committing the carnal act, or dies ; and 
that she is entitled to a present when he 
divorces her before consummation. Zin\.'r 
alleges that the alien woman is entitled to 
her proper dpwsr in either case (that is, in 
the event either of the husband's death, or 
of divorce), because the law does not hold it 
allowable to seek or desire marriage but in 
return for property, and this rule equally 
affects Infidels and Mussulmans, as marriage 
forms a part of the temporal law, the obliga- 
tions of which extend to all alike. To this 
the two disciples reply, that aliens do not 
take upon themselves any obligation to the 
observance of the laws of Islam, neither ars 
they capable of so doing, on the account of 
a difference of country contrary to the case 
of Zimmees, who are subject to the Mussul- 
man law in all temporal concerns, or acts to 
which the temporal law has reference (such 
as whoredom, usury, and so forth), since 
they are fully capable of taking upon them- 
selves an obligation to the observance of 
those laws, as being native subjects of the 
Mussulman country. Haneefa reasons upon 
this, that Zimmees do not subject themselves 
to any of the laws of Islam, either with 
respect to things which are merely of a 



* Meaning the tflesh or carcass of any 
animal which dies a natural death. The 
original word signifies the flesh of any fowl 
or quadruped not being Game) which has 
not been lawfully slain. 



religious nature (such as fasting and prayer) 
or with respect to such temporal acts as, 
though contrary to the Mussulman law, they 
may hold to be legal (such as the tale of 
wine, or of swine's flesh), because we are 
commanded to leave them at liberty, in all 
things which may be deemed by them to be 
proper; according to the percepts of their 
own faith ; wherefore, with respect to all 
such acts, Zimmees are the same as aliens ; 
but from these is to be excepted whoredom, 
that being held universally, and by all sects, 
to be a criminal act ; and as to usury, no 
such thing can have legal existence, it being 
excepted from all the obligations to which 
the person can be subject, because of a saying 
of the Prophet, ''Observe that between us, 
and whosoever takes usuiy, no engagements 
exist." The compiler of the Hedaya re- 
marks that what Mohammed has advanced 
in the Jama Sagheer, "If a Christian man 
marry a Christian woman without any 
dower" and so forth, may be understood 
in two ways, one', the absolute exception of 
a dower (that is especially stipulating that 
there shall be none; ; and the other, merely 
the omitting to mention it in the contract. 
Some have said, concerning this case, that 
where the dower is either made to consist of 
unlawful articles, or is not mentioned in the 
contract, there are two traditions ; according 
to one, the woman is entitled to her proper 
dower (as maintained by the two disciples), 
and according to the other, nothing whatever 
is due ; and it is from this variance on the 
traditions that the difference of opinion arises 
between Hanetfa and Muhammed. 

Of the dower of infidel wbiects, where it 
consists of wine or pork IF a Zimmee marry 
a Zimmeed, making the dower to consist of 
wine or pork, and one or both should after- 
wards embrace to the faith, yet the woman 
is nevertheless entitled to the unlawful 
article settled upon her, although the con- 
version take p'ace previous to seisin, pro- 
vided the unlawful article had been identi- 
cally specified ; but if this be not the case, 
the woman, in the instance of wine, is to 
receive the estimated value of such wine, or 
in that of pork, her proper dower This is- 
according to Haneefa. Aboo Yoosaf alleges 
that the woman is entitled to her proper 
dower in either instance. Mohammed, on 
the contrary, maintains that she is in either 
instance entitled to the estimated value of 
the unlawful article specified, whatever it 
be. The reasoning upon which the opinion 
of the two disciples proceeds in this case is 
that by seisin, 'or possession, the right in 
the thing possessed becomes fully established 
and confirmed ; seisin, therefore, is similar 
to a contract of marriage, since, like that, 
it produces a right which had not before 
existed ; and consequently the seisin o f 
wine or pork by a Musslima, as a dower, # 
illegal, the same as a contract itself 'includ- 
ing a specification of such unlawful articles, 
as a dower ; and this, whether those articles 
may have been indentically specified, or oni/ 



58 



MARRIAGE. 



[VOL. I. 



generally mentioned. Aboo Yoosaf further 
remarks that as, where the time of seisin is 
connected with the time of the execution of 
the^contract, if both parties were then to 
embrace the faith, her proper dower would 
become due to the woman, so in the present 
instance likewise : with Mohammad on the 
other hand, the mention of the unlawful 
article, as a dower, is approved; as being 
held, by the sect of the parties, to be pro- 
perty ; but yet the delivery is forbidden, on 
account of the parties having embraced the 
faith ; wherefore the value becomes obliga- 
tory upon the husband, the same as where a 
man makes dower of a slave who dies before 
the delivery. The argument of Haneefa on 
this subject is that a dower identically 
specified becomes the property of the woman 
on the instant of the contract of marriage 
being executed, for which reason it is that 
a woman is empowered to make what use 
of her dower she may think expedient, by 
giving it away, or transferring her property 
in it, either for or without a return ; and the 
only difference that possession makes is, that 
the husband is thereby exonerated from 
responsibility with respect to it, this being 
simply a transition of it from the possession 
of the husband to that of the wife, which 
does not become prohibited here by the Islam 
of the parties, any more than in the case of 
a claim of restitution of wine which had been 
forcibly seized :--that is to say, if a person 
were to make a forcible seizure of wine from 
a Zimmee, and this Zimmee should after- 
wards become a Mussulman, he is neverthe- 
less still at liberty to claim* restitution of 
the wine thus forcibly seized ; and so like- 
wise in the present case (contrary to a case 
where a Zimmee purchases wine or a hoc:, 
and afterwards becomes a Mussulman before 
he has taken possession of his purchase : for 
in this case it is unlawful for him to take 
possession, and the bargain becomes void, 
because, in sale, a right of transaction with 
respect to the property sold does not take 
place until after seisin is made of it by the 
purchaser, which becomes forbidden by his 
subsequent Islam) : but where the unlawful 
article is not identically specified, nothing 
but actual possession can establish a pro- 
perty in it, and this becoming prohibited 
by the subsequent Islam of the party, and 
being thereby precluded, the price or value 
of the pork would not be due to the 
woman, because the receipt of that u> the 
same as of the property itself, hog's flesh 
being of the class of things denominated 
Zooatal-Keem, whereas win% is not of this 
nature, being of the class of ZooataMmsal, 
for which reason, if the husband were to 
offer the value before Islam, the wife would 
be compelled to accept of that of the pork, 
but not of that of the wine. It is to be 
fe marked that if the husband, in the present 
instance, were to divorce his wife Lefpre 
consummation, the same difference of opinion 
exists among our doctors ; those who (as 
L abovc) determine for a proper dower, decree- 



ing her a present ; and those who make the 
value of the article obligatory upon the hus- 
band, decreeing her an half of such value. 



CHAPTER IV. 

OF THE MARRIAGE OF SLAVES. 

Slaves cannot marry without the consent 
of their proprietor. THE marriage of a male 
or a female slave is not lawful without the 
master's consent. Malik has said that the 
marriage of a male slave is vald indepen- 
dent of the consent of his master, because he 
is competent to pronounce divorce, and is 
therefore equal to the contracting of mar- 
riage. The armiments of our doctors on this 
subject are twofold : FIRST, a precept of ihe 
Prophet says, "Whatever slave marries with- 
out his owner's consent is an adulterer ;" 
SECONDLY, marriage, with respect either to 
male or female slaves, is a blemish,* on 
which account they are not at liberty to 
enter into such a contract without the appro- 
bation of their owners 

Nor Mohatihs, NEITHER is it lawful for 
a Mokatih to enter into a contract of mar- 
riage without his owner's consent ; because a 
slave of this description, although he be, by 
virtue of his contract of Kitabat, rendered 
free with respect to acquibtion, of necessity, 
lie remains with respect to matrimony, sub- 
ject to the laws of bondage. And, fur the 
same reason, it is not lawful for a Mokatib 
to contract his own male slave in marriage 
without the consent of his owner. 

Although such may contract their own 
female slaves in marriage nar Mokatibas, 
although they have the icwie privilege. Bur 
he may lawfully contract his female slave, as 
hence arises an acquisition, in ht-r tlower. 
In like manner, it is not lawful for a Moka- 
tiba to merry without her owner's consent ; 
but* she may liwfully cantract her female 
slavein marriage, as hence arises an acquisi- 
tion to her as above. Neither is it lawful for 
a Modabbir or Am-Walicl to marry without 
their owner's consent, becasue his authority 
with respect to them still exists. 

A slave may be sold for the discharge of 
his wife's dower. IF a slave marry with his 
master's consent, the dower (to the woman 
whom he marries) is a debt upon his person, 
for the payment of which he may be sold, 
because the debt has become obligatory upon 
t^e slave on account oi the existence ot its 
cause (namely, marriage, proceeding from a 
competent person), and the obligation of the 
debt exends to the master also, he having 
consented thereto, and accordingly devolves 
upon him, in order that the creditor may be 
protected from injury, as in the case ot debts 
contracted by a slave in mercantile dealing. 

And a Modabbir or Mokatib are to dis" 
charge it by labour A MODABBIR or Mokatib 
(in case of marriage) must discharge the 



*As tending to depreciate their value. 



BOOK II CHAP. IV,] 



MARRIAGE. 



dower by labour, as not being liable to be 
sold, because the property in them is not 
capable of being transferred from one to 
another ; this debt of the dower, therefore ; 
is to be discharged by their acquisitions, so 
that the wife may not be subject to loss ; 
but their persons are not liable to be attached 
for payment. 

How far a master's desiring his slave to \ 
divorce his wife, is an argument of his assent 
to the slave's marriage. IF a slave marry 
without his owner's consent, and the latter 
afterwards should say to him, "divorce" 
[your wife] or "put her away," his [the 
[owner's] assent to the marriage is not im- 
plied, because such a mode of address bears 
the construction of obstructing or resisting 
execution of the contract, as the terms 
divorce and separation apply to that, as well 
as to the dissolution of the contract of mar- 
riage already executed . it is therefore to 
be thus construed, either because this is 
suitable to the state of disobedient and 
refractory slave, or because the prevention 
of a marriage is an act of less magnitude 
than the assenting to it. But if the owner 
were to say to his slave, "repudiate her by a 
divorce reversible," this implies his assent to 
the marriage, because a reversible divorce is 
not supposed but in a case of marriage 
[already executed], wherefore assent to the 
marriage, is hereby signilied. 

Obligation of the dower in a case of invalid 
mariiage, contracted by a slave at tne desire 
of his owner. IF a person desire his slave to 
marry such a female slave, and he accordingly 
wed her by an invalid marriage,* and have 
carnal connexion with her, Haneefa holds that 
the slave shall be sold for the discharge of her 
dower. The two disciples, on the contrary, 
maintain that the dower shall be exacted of 
him (the slave) upon his becoming free. 
The foundation of this difference of opinion 
is that, with Haneefa, assent applies equally 
to a legal and to an invalid marriages and 
consequently the debt [of the dower] is upon 
the owner ; but with the two disciples, assent 
applies to a valid and regular marriage only, 
wherefore the debt is not upon the owner 
(whence it is that it may be required of the 
slave on his becoming free at any subsequent 
period), for they argue that the intent of 
marriage is to guard against incontinence, 
and that end is obtained^ by regular, but not 
by invalid marriages, wherefore if a person 
were to make a vow that he will not marry, 
his vow applies solely to regular marriage : 
contrary to a case of sale ; that is to say, if a 
person were to empower another in sale, such 
power extends both to regular and to invalid 
sale, a variety of privileges being therein in- 
volved, sucn as the right of emancipation, 
and so forth. Aboo Haneefa, on the other 
hand, argues that the word "marry" [in the 
owner's desire expressed to his slave] is 



*That is, under such circumstances of 
affinity, &c , as invalidates the marriage. 



general, and is therefore to be considered ts 
having a general application, the same as 
sale ; and there are a variety of points in- 
volved in an irregular, marriage, as well as in 
sale, such as genealogy [of children born in 
such, marriage], and the obligations to the 
payment of dower, and to the observance of 
Edit ; and with, respect to the instance of a 
vow, as produced by the two disciples, it is 
not admitted as applicable by Haneefa. 

Case of an indebted Mazoon, contracted 
in marriage by his owner. IF a man con- 
tract his Mazoon, or privileged slave, who .is 
a debtor, to any woman in marriage, it is 
lawful ; and the wife [in virtue of her right 
to her dower] becomes a joint creditor with 
the others ; that is to say, the slave is to be 
sold for the discharge of all debts, and 
the price arising from the sale is to be divided 
between his wife and the other creditors, in 
propoition to their respective claims. The 
compiler of the Hedaya observes that this 
rule holds only where the marriage has been 
effected upon a tylihr Misl, or less ; but if the 
dower exceed the Misl proportion, the other 
creditors are, in that case on an equality with 
the wife, so far as the amount of her Mihr 
Misl, or proper dower, and the payment of 
the excess must be postponed till after the 
discharge of the debt to the creditors ; the 
ground of which is, that the owner's autho- 
rity over his slave, with respect to matri- 
mony, is founded on his having the property 
of his person (as shall be hereafter ex- 
plained), and that right of property still 
remaining, the marriage of the slave is 
completely legal and valid. 
OBJECTION.-*- In consequence of the marriage 
the right of the creditors is rendered null both 
by design, an-1 in effect ; wherefore it would 
be requisite that, in discharging the debts of 
the Mazoon, those du to the first creditors 
ought to be first paid; whereas it is other- 
wise in this case, for they are all put on an 
equality. 

REPLY. The right of the creditors is not 
designedly rendered null by the marriage : 
but the marriage being held valid, the debt 
of dower is due in consequence of the exist- 
ence of its cause ; and there is nothing to 
invalidate its existence ; the dower, there- 
fore, is the same as a debt of damage ; that 
is to say, where a Mazoon slave, being 
already in debt, destroys or wastes the pro- 
perty of a stranger, the latter comes in as a 
joint creditor ; and the slave is as a sick 
debtor ; that is to say, if a sick person, being 
in debt, rnarry a woman, she comes in as a 
joint creditor with the others, to the amount 
of her proper flower, and so in this case like- 
wise. 

A master may withhold permission from 
his female *lave to dwell in the house of her 
husband IF a master contract his female 
slave in marriage to another man, he is not 
under any obligation to send her to the hodse 
of her husband, she still remaming'attached 
in service to her master ; and the husband 
shall be desired to visit his wife at^ppor- 



60 



MARRIAGE. 



[Vor. I. 



tune seasons, at her masters house, because 
his right to her service still remains in virtue 
of his property in her ; and if he were under 
any obligation to send her to the house of her 
husband, his right would be rendered null. 

And if he so permit, her husband must 
support her, but not otherwise. AND if the 
master should give permission to his female 
slave to dwell in the house of her busband, 
her subsistence and lodging are incumbent 
upon the husband ; but if he should not 
permit this, nothing whatever is incumbent, 
because subsistence is the recompense for 
the matrimonial restraint ; and if she live 
in the house of her husband, she is under 
this restraint, but not otherwise. And if the 
master thus permit her to dwell with her 
husband, still he is at libearty, notwithstand- 
ing, to call for and require her legal service 
at any subsequent period, because his right 
of usufruct still continues, in virtue of his 
property in her ; and this right is not relin- 
quished by such permission any more than 
by her marriage. 

THE compiler of the Hedaya remarks 
that Imam Mohammed has said, "A master 
contracting his male or femile slave in mar- 
riage is lawful/' without making any men- 
tion of the consent of the slave to such 
marriage, which shows that this consent is 
not a condition ; and such is the opinion of 
our doctors, who hold that a .master is em- 
powered to contract his slaves in marriage 
by compulsion ; that is to say, that the mar- 
riage ot such, where it is contracted by the 
master, holds good independent of their con- 
sent^ According to Shafei, wa master is also 
empowered to contract his male slave in 
marriage by compulsion ; and there is also 
an opinion of Haneeia lecorded to this effect ; 
this doctrine proceeds upon the principle 
that marriage is a natural privilege of man, 
and a slave is a possession of his owner by 
the laws of property, but not by the laws of 
nature ; wherefore the master is not endowed 
with any absolute authority with respect to 
his marriage, contrary to the case of a female 
slave, whose owner, as being entitled to the 
carnal use of her person, is at liberty to 
transfer the same to any other. The argu- 
ment of our doctors on this subject is that a 
master, in causing his slave to inairy, acts 
with a viexv to the preservation of his pro- 
perty, because, by marrying, the slave is 
withheld from the commission of whoredom 
which is a cause of destruction or damage ;* 
the master, therefore, is fully empowered 
with respect to the marriage of his male 
slaves, the same as of his * r e males ; but he 
is not thus empowered with respect to his 
Mokatib, or Mokatiba, because these are, as 
to privileges the same as free persons, and 
their consent is therefore a condition ; for if 
it were otherwise, their privileges and powers 
of action would be totally annulled. 



''On account 
attends it. 



of the punishment which 



An owner slaying his female slave before 
consummation has no claim to her dower. 
IF a man marry his female slave to another 
person, and afterwards put her to death, 
before her husband has had carnal connex- 
ion with her, no part of the dower whatever 
is, in this case, due from the husband, ac- 
cording to Haneefa. The two disciples hold 
that, in this case, the dower is due from the 
husband, in the same manner as it would be 
if the female slave had died a natural death ; 
and the foundation of their opinion is that a 
person who is slain dies by his own fate, 
death implying merely the termination of 
life, and life being terminated by the act 
of killing. The case, therefore, is here the 
same as if the female slave had been slain 
by a stranger ; that is to say ; if the female 
slave had been slain by a stranger, her dower 
would remain due fiom the husband, and so 
also in the present case. The argument of 
Haneefa is, that the owner of the slave, who, 
as being her Mawla, claims the consideration, 
has by his act prevented the delivery of the 
return (to wit, the person of woman), 
and consequently his right to the considera- 
tion is extinguished, in the same manner as 
1 when a free woman apostatizes ; that is to 
say, if a free woman apostatize fiom the 
faith before she has admitted her husband 
to the carnal embrace, no dower whatever is 
due to her, she fby her act or apostasy] having 
prevented the delivery of the return ; and so 
likewise in the present instance. With re- 
spect to what is advanced by the two dis- 
ciples, that "a person who is slain dies by 
his own fate," it may be answered, that 
although this be admitted, yet it holds \vjth 
rtsptct to a future state only, ant) not with 
respect to this world, murder, according to 
worldly institutes, being in the eye of the 
law considered as an act of destruction, in- 
ducing retaliation, fine, and so forth ; and 
it i$ therefore to be regarded as an act of 
destruction with respect to the dower, that 
also being a temporal institution. 

The dower of a free woman is due, although 
she kill herself befote consummation IF a 
free woman kill herself before she has ail- 
nutted her husband to carnal connexion, 
her dower is nevertheless due from him, 
contrary to the opinion of Ziffer, who con- 
ceives an analogy between this case and that 
of a woman apostatizing before carnal con- 
nexion, or of a master slaving his female 
slave ; for he argues that no dower whatever 
is here due from the husband, as the wife to 
whom the consideration belongs, has by her 
act of suicide, prevented the delivery of the 
return. The arguments of our doctors are 
that, in worldly institutes, no regard is paid 
to the offence committed by a man upon his 
own person, wherefore suicide is to be held 
as dying a natural death, contrary to the 
case of a man killing hij female slave, that 
being an act to which worldly institutes 
have regard, and, as such, subjecting the 
perpetrator of the murder to the perfor- 
mance of acts of expiation. 



BOOK H.-CHAP. IV.] 



MARRIAGE. 



61 



IF a man marry the female slave of another 
and be desirous of committing the act of Azil 
with her (i.e. emissio scminis in ano, vel 
inter Mamillas), this shall depend upon her 
master's permission, according to Haneefa ; 
and such also is the Zahir Rawayet. Accord- 
ing to the two disciples, the permission to 
this act rests with the slave, because [as 
being the man's wife] carnal connexion is 
her right ; but by Azil that carnal connex- 
ion which is her right is frustrated. Her 
consent, therefore, is a requisite condition to 
the legality of the act, the same as that of a 
free woman, contrary in the case of a female 
slave, who is the property af the person 
having such connexion with her,* because 
cainal connexion is not her right (whence 
it is that she is not entitled to claim the 
carnal act of her master or owner), and 
consequently her consent is not a condition. 
The principle upon which the Zahir Rawayet 
proceeds in this case is, that the act of Azil 
defeats the intention of marriage, which is 
the production of children, arid this is a 
right of the master ;f whence it is that his 
consent is a condition, and not that of the 
slave. And heiein appears a distinction 
between the state of a free woman and that 
of a slave fin mairiage"]. 

A female shite, upon obtaining her frec- 
dnm, has a right to annul the mart idge con- 
tract. IF a female slave marry with her 
owner's consent ,| and afterwards become 
free, she is then at liberty either to break off 
the marriage or to continue it, whether her 
husband be a slave of a freeman, because, 
upon Harrf era (who was a Mokatiba of Aysha) 
becoming free, the Vrophet said to her, "You 
aie now mistress of your own person, and 
therefore at your own disposal," which tra- 
dition evinces that she is at liberty as above, 
whether her husband be a slave or a freeman, 
since the cause <>f her right of. opinion, as 
there mentioned (that is ,her being mjstress 
of her own person), exists equally yi either 
case. *Shafei maintains that she has no such 
right of option where her husband is a free- 
man. The tradition above quoted, however, 
is in proof against him ; moreover, the power 
of the husband with respect in his wife is 
greater after her emancipation that it was 
before, because before she was free he had 
power to pronounce only a double sentence 
of divorce, whereas afterwards he is autho- 
rized to pronounce three divorces, on which 
account she is justly empowered to set aside 
the contract of marriage; so as that her hus- 
band may not obtain any additional autho- 
rity with respect to her in consequence of 
her emancipation. And the rule is the same 
where a Mukatiba marries with her owner's 



*As where a piaster has connexion with 
his female slave in virtue of propriety. 

fBecause he has a propriety in the chil- 
dren born of his slave. 

JThat is, at his instigation. 



consent, and afterwards becomes free. Ziffer 
says that a Mokatiba has no right of option, 
because the contract of marriage preceded 
by, and was excuted with, her especial con- 
sent, and she receives the dower,* and such 
being the case, she can have no subsequent 
right of option, contrary to the case of an 
absolute slave, whose consent in marriage in 
not regarded.- -The argument of our doctors 
is that the reason for her right of option (to 
wit, the accession, to the husband, of an 
additional authority with respect to her) 
appears in the case of a Mokatiba, the same 
as in that of an absolute slave, for before 
freedom the term of her Edit was only two 
menstruations, and she was subject to no 
more than a duplicate sentence of divorce ; 
whereas, in her state of freedom, her Edit 
includes three menstruations, and she is sub- 
ject to three divorces. 

But not otherwise IF a female slave 
marry without her owner's consent, and be 
afterwards made free, her marriage then 
becomes legal and valid, because^ being of 
sound miiul and mature age, she is compe- 
tent to the declaration and acceptance ; 
moreover, the illegality of the marriage was 
on account only uf the owner's right, which 
being done away, it lemaiiis lawful ; and the 
woman has not any option, as in the former 
case, because the marriage is not in this case 
valid until after ^mancipation, which conse- 
quently occasions no accession of power to 
the husband ; and hence the case is the same 
as if she were to beslow herself in marriage 
after emancipation. 

Case of p man marrying a female slave 
without ht.r ownci's consent. IF a man 
marry a female slave, without her owner's 
concurrence, on a dower of a thousand 
Djrms, her proper dower being one hundred 
Dinns only, and he have carnal connexion 
with her, ami her owner afterwards emanci- 
pate her, the specified dower goes to him 
[the owner], because the husband has here 
obtained possession of an article which was 
the property of the owner, who is therefore 
entitled to the return ; but if the marriage 
be not consummated until after emancipa- 
tion, the specified dower goes to the woman, 
because in this case the husband appears to 
have obtained possession of an article which 
was her property, and she of course is en- 
titled to the return, since tne mariiage, in 
consequence of her emancipation, takes 
effect from the period of the contract ; and 
hence the specification of the dower is valid, 
and that which wa specified is incumbent ; 
and accordingly, no other dower is due on 
account of carnal connexion previous to the 
efficiency of the marriage, ...here that has 
been suspended [upon the event of the 
owner's approbation, or the slave's freedom], 
because the marriage, deriving its legaltiy 



In opposition to the case of an absolute 
slave, whose dower is received by her Mawala 
or proprietor, and by him appropriated. ' 



62 



MARRIAGE. 



[VOL. I. 



from the original contract, its efficiency is 
considered as existing from the instant the 
marriage takes place ; nothing, therefore, but 
one dower can be due. 

Case of a father cohabiting with the slave 
of his son. IF a father enjoy the female 
slave of his son, and she produce a child, 
and he [the father] claim it, the slave be- 
comes his Am Wai id, and he is answerable 
to his son for her value ; but he is not so for 
her dower, because a father being at liberty 
to possess himself of the property of his son, 
whenever that may be requisite to his own 
preservation, it follows that he may possess 
himself of her son's slave, where he requires 
her for the preservation of his progeny, since 
he thereby provides for his own continuance, 
he being virtually continued in his offspring j 
but the preservation of his progeny being a 
matter of less immediate importance than 
that of his life, he must pay a price in ex- 
change for the slave, whereas he might take 
his son's victuals without paying any price. 
And here the father's property in the slave 
is established antecedently do his claim of 
the child, possession being a condition essen- 
tial to such claim, which does not hold good 
unless he be either fully possessed of her in 
all respects, or at least have a right of pos- 
session in her ; and neither of these exist in 
him (insomuch that he might legally marry 
her) ; - it is therefore require that his pro- 
perty in her be considered as existing a 
priori ; and this being admitted, the father 
appears to have had carnal connexion with 
his own slave, and consequently is not sub- 
ject to the payment of an A&r. Ziffer and 
Shafei maintains that the slave's dower is a 
debt upon the father ; because they hold that 
his property in her is a consequence of his 
Isteerad, 6r claim of the child, that is, that 
his right of possession is thereby established 
the same as in a partnership slave ; now the 
effect of a thing, is not found until after that 
thing has taken place ; and such being the 
case, as the carnal connexion appears to have 
been had, in the first instance, with the 
property of another, a dower is due. 

Gate of a son contracting his female slave 
in marriage to his father. IF a man marry 
his female slave to his father, and she pro- 
duce a child, she does not become Am-Walul 
to the father, neither is her price a debt 
against him, because he is answerable for 
her dower ; and the child born of her is free, 
such a marriage being approved by our doc- 
tors. This is contrary to the doctrine of 
Shafei, according to whom a marriage of 
this kini is illegal. The a^ument of our 
doctors is, that the slave is not at all the 
property of the father, because, the sou 
being her proprietor in every respect, it is 
impossible that the father should be so in 
any view ; the son, moreover, is endowed 
With privileges [in regard to her] which do 
not appertain to his father, such as selling 
or bestowing her in marriage or emanci- 
pitiog her, which evinces that the father is 
not in any retpect her proprietor, although, 



in a case where he has carnal connexion 
with her, punishment drops, on account of 
erroneous possession ; and his marriage with 
her being admitted as legal, the conservation 
of his deed is effected by means of marriage, 
[not by means of Isteelad], so that his pro- 
perty in her is no way established [by the 
circumstance of her bearing a child to him], 
and consequently she does not become his 
Am-Walid And here the father is not 
answerable for the value either of her or of 
her child, as he does not become proprietor 
of either ; but he owes her dower, he having 
| taken that upon him by his marriage ; and 
i the child is free, because his owner would 
otherwise be his brother ; and he is virtually 
emancipated of course. 

The marriage of a free woman with a 
slave ?i annulled by tier procuring his eman- 
cipation. IF a free woman, being the wife 
of a slave, should say to the proprietor of 
such slave, "Fmancipate him on my behalf 
for a thousand Dnms," and he accordingly 
emancipates him, the marriage is annulled. 
Ziffer maintains that it is not annulled. 
Our doctors argue, on this occasion, that the 
slave obtains his freedom from the woman, 
whence it is that the right of Willa rests 
with her, and also, that if she were under 
obligation to peiform an expiatory act, and 
intend her husband's release to stand as 
such, her expiation is thereby fulfilled. 
With Zirler the emancipation is held to pro- 
ceed Irom the owner, because the woman has 
required him to emancipate the slave "on 
her behalf/' which is absurd, since manu- 
mission connot take effect upon a slave who 
is not the property of the emancipator ; con- 
sequently, her requisition being improper, 
emancipation is to be regarded as proceeding 
solely from the owner. Our doctors, on the 
other hand, say, that there is one mode in 
which the requisition of the woman may 
be rcnderecf proper, viz. by considering her 
property in the slave to have existence pre- 
vious *to emancipation, as an essential (for 
her right of possession is a condition of the 
validity of emancipation on her behalf), and 
sucjh being the case, her requisition ' 'eman- 
cipate him, &c" bears the construction of 
her desiring the owner first to transfer to 
her his property in the slave for such a 
consideration, and then to emancipate him 
"from her," and the reply of the owner, 
' 'I have emancipated him," is as if he were 
to say that he had transferred him, and then 
set him free "from her ;" and upon the 
woman's property in him being established, 
it necessarily follows that the marriage is 
annulled, the marriage of a free woman 
with her slave being illegal, since possession 
by right of property is irreconcilable with 
possession by matrimony. But if the woman 
were to say to the owner of her husband, 
"emancipate him from me/' without men- 
tioning any consider atiorT, in this case the 
marriage is not annulled, and the Willa 
rests with the master. This is according to 
Haneefa and Mohammad. Aboo Yooaaf says 



BOOK II. CHAP. V.] 



MARRIAGE. 



63 



that this and the preceding case are the 
same, and that the marriage is here likewise 
annulled, because in this instance also the 
transfer must be supposed to have previously 
taken place (though without any return), in 
order that the act may be lawful. 

OBJECTION Transfer of property, without j 
a return! amounts to gift, and that is not j 
valid without seisin ; now here seism does j 
nnt appear ; consequently how can the trans- j 
fer be valid ? j 

REPLY Seisin is not in this case regarded, j 
any more than in Zthar ; thus, if the expia- i 
tion of Zihar were in-mmbent upon any per- ! 
son and he were to desire another to give j 
the victuals,* as from him, and the other do j 
accordingly, the gift is understood indepen- 
dent of seisin ; and no here likewise The \ 
argument of Hanoefa and Mohammed is that 
seisin beini* declared, in the ordinances of .the 
Prophet, to be a condition of cjift, cannot be 
dispenesed with; neither can it be established 
merely by supposing or assuming it, as an 
essential, because seisin is a sensible act, 
contrary to salt:, which is a l<ijal transacation ; 
and in the case of expiation, as ciled by Aboo 
Yoosaf, the poor stand as the deputies of the 
expiator, in the seisin of the victuals, but 
the slavcdn the case here treated of) cannot 
stand as the wife's deputy, because nothing 
is received by him, $>v> as to constitute him 
her deputy in t>eism. 



CHAPTER V. 

OF THE MARRIAGE OF INFIDELS. 

The marriage of an InfiM couple is not \ 
dissolved by their jointly embracing the faith. 
IF an Infidel man and woman. marry with- ! 
out witnesses, or whilst the woman is, in her ' 
Edit from a former Infidel husband, ^nd this 
be no objection by the rule of their own sect, 
and they afterwards embrace the faith to- | 
gethcr, their marriage remains valid. This ' 
is according to Haneefa. Ziffer maintains 1 
the marriage to he invalid in either case ! 
(that is to say, whether it be entered into I 
without witnesses or during the woman's | 
lulit), but that Infidels are not liable to be , 
called to an account until they embrace 1 
IbUm, or until they appear to the law, that! 
is to say, carry the matter before the judge, j 
The two disciples concide with Haneefa in ' 
the first case | the defect of witnesses], but 
agree with Ziifer in the last [the KditJ. The 
argtment of Ziffer is that the word of the 
sacred writings extends to all men alike, and 
consequently to Infide's ; but the parties, as 
being Zirnmees, are not liable to molestation ; 
b'.n this exemption from molestation is an 
effect of indulge/ice, and does not proceed 
from any idea of the marriage being legal 

* Book of Divorce, Chap. IX. 



and of course, where it becomes a subject of 
litigation* or the parties become Mussulmans 
separation must ensue, the illegality of their 
marriage still remaining. The arguments 
of the two disciples are that the illegality of 
Poliandry is universally admitted amongst 
Mussulmans, and that Infidel subjects have 
engaged to follow the temporal law in all 
such points as are universally admitted ; but 
with respect to the illegality of marriage 
without witnesses there subsists a difference 
of opinion among the Mussulmans ; and In- 
fidels have engaged only to follow such tem- 
poral law of Islam as are universally ad- 
mitted, and not such as are disputed ; hence, 
in the case of t'olianday a separation becomes 
necessary, but not in the case of marriage 
without witnesses. Haneefa argues that the 
marriage is not rendered illegal by the in- 
junctions of the law, because those injunc- 
tions arc not addressed to Infidels ; neither 
does any reason exist why the Kdit should 
be obligatory on account of the right of a 
husband who has no faith in the necessity of 
it ; contrary to a case whcie the Infidel wo- 
man is the wife ot a Mussulman, because he 
has faith m the necessity of Kdit : and there- 
fore the illegality ot her marriage [with the 
In Fidel] should in thr. i ase be established, on 
account of Ins [the Mussulman's) right ; and 
the marnaqe being valid abimtiu, on account 
of no illegality appearing therein, continues 
to exist a b such, since U>tunony is not a con- 
dition with rc&pi'i'i to the period of its exist- 
ence : and the UK unist.mivs of appeal to the 
law 01 of conversion to the iaith, take place 
during the existence ot the marriaqe : neither 
does the ciuumstance of the Edit forbid the 
continuance ot the mairiagc ; as when a man 
(I'm mstdiKfJ has carnal connexion, errone- 
ously, vith the iviO of annlhrr, in which 
case an Edit is incumbent upon the woman, 
but the marriage continues to hold good. 

Unless it he a marriage within the pro- 
hibited degree* --!F a Majoosee wed his 
mother or his daughter, and they afterwards 
become Mussulmans, they arc to be separated. 
This h.)lds with the two disciples, because a 
maTiage within the prohibited degree is 
universally admitted to be null, on which 
account the rule extends to Infidels as well 
as Mussulmans (as bcfoie mentioned, from 
thpm, in the case of h'dit), and the parties, 
upon their conversion, being necessarily 
liable to molestation on account of such mar- 
riage, it follows that a separation must take 
place upon that event ; arid it holds also with 
Hanetia, hecausf, although such marriage 
be deemed lawful HI the Rawayet Saheeh, 
yet the circumttance of the wife being within 
the prohibited degrees forbids the continu- 
| ance of it after conversion, on which account 
| separation is to talo- place : contrary to the 
circumstance of Edit, which (according to 
Haneefa) does not forbid the continuance 
of the marriage. 

But if une of them only be converted, a 
separation takes place.- ~\f only one>ofthe 
parties be converted to the faith, a sepa**- 



64 



MARRIAGE. 



[VoL. I. 



tion follows ; but if one only appeal, Haneefa 
holds that separation does not take place : 
contrary to the opinion of the two doctors, 
according to whom separation take, place in 
this case also.-The reason, with Haneefa, 
for making this distinction between these 
two ^** is, thatthe right of one party is 
not invalidated by the appeal of the other, 
as the faith of the one is not altered by the 
appeal of the other: but where 'dne of the 
parties becomes a Mussulman, although the 
faith of the other be not altered by that 
event, yet the faith of an Infidel is not suffi- 
cient to controvert or oppose the Islam of a 
Mussulman, as Islam is the subjector and 
carrot be subjected. -But where both the 
parties enter into a litigation it is univer- 
sally acreed that separation takes place, be- 
cause this mutual litigation amounts to both 
authorizing any third person to effect a gepa- 
ration between them, which if they were to 
do the separation so effected would be legal. 
Apostates are incapacitated from marry- 
in* IT is not lawful that an appostate marry 
any woman, whether she be a believer an 
Infidel, or an apostate, because an apostate 
is liable to be put to death ; moreover, his 
three days of grace are granted m order that 
he may reflect upon the errors which occasion 
hisapostacy ; and as marriage would inter- 
fere with such reflection, the law doe* not 



lirner, it is not lawful that a 
female apostate marry any man. whether 
Mussulman or Infidel, because she is impri- 
soned for the purpose of reflection (as above), 
and her attention to her huslfand would in- 
terfere therewith ; moreover, this circum- 
stance of her imprisonment necessarily pre- 
vents the matrimonial intercourse ;--now 
marriage is lawful, not in respect to itself, 
but to its ends, and consequent y, where 
these are def.ated, it cannot be deemed in 



herter or mother be Mu.ul- 
n, their children are Alussulmans.-WHEN- 
*K either the husband or the wife is a 
Mussulman, their children are to be educated 
the Mussulman faith. And if either one 
or other [of an Infidel couple] become a Mus- 
sulman and they have infant children, those 
eTo be considered as Mussulmans in virtue 
of the Islam of one of their parents, because 
this is tenderness to the children. 

Or where one is of a superior order of 
Infidels, and the other of an inferior, their 
children are of the P"'" ^ r '~ lF e 
of a married couple be a Kitabee, and the 
other a Majoosee, their chifdren are to be 
regarded as Kitabees, because, in this also 
[here is a degree of tenderness with respect 
to the children, as a Majoosee is worse than 
Khabee. Thi. is contrary to the doctrine 
who holds the infidelity of a 



of on< of the parties. 
magistrate is to require the other to em- 



brace the faith, and must separate them, in 
case of recusancy. WHEN the wife becomes 
a convert to the faith and her husband is an 
Infidel, the magistrate is to call upon the 
husband to embrace the faith also ; if he 
accede, the woman continues his wife ; but 
if he refuse, the magistrate must separate 
them ; and this separation, with- Haneefa 
and Mohammed, is a divorce. In like 
manner, if the husband become a Mussul- 
man and his wife be a Majoosee, the magis- 
trate is to call upon her to embrace the faith 
also ; if she accede, she remains his wife ; 
but if she refuse, th* magistrate must 
separate them ; but this separation is not 
divorce. Aboo Yoosaf has said that the 
separation is not divorce in either case. 
What is here advanced of the magistrate 
calling upon the party to embrace the faith, 
is an opinion of our doctors, Shafei main- 
tains that the magistrate is not to make any 
such requisition because this is molestation 
and we have engaged not to molest Zimmees, 
as they have entered into a contract of sub- 
jection to us. 

OBJECTION It would hence appear that 
the matrimonial right of possession should 
not terminate in this case ; whereas Shafei 
also holds that it is terminated. 

REPLY. The matrimonial intercouise is 
not admissible between a Mussulman and an 
Inridel ; for which reason it is that the n.a- 
trimonial right of possession is terminated 
on the instant of conversion, where either 
party embraces the faith, before consumma- 
tion, because in this case the right has not 
been confirmed ; but, on the other hand, if 
conversion take place after consummation, 
the termination is delayed until the end of 
three menstruations, because the right has 
on this occasion been confimed ; as holds in 
divorce. The argument of our doctois is, 
that, upon cither party embracing the faith, 
the tnds of ma mage are defeated, on account 
of difference of religion ; hence it is absolutely 
necessary that recourse be had to sorrw means 
by which a separation may be effected ; 
now Islam, as an- act of piety, is incapable 
of being rendered a cause of separation ; the 
Infidel party is therefore to be called'upon 
to embrace the faith, in order that the ends 
of marriage may be answered by conversion, 
or that a cause of separation may be estab- 
lished in case of refusal. The reason upon 
which Aboo Yoosaf founds his opinion is that 
the occasion of separation, to *it, refusing 
the faith, may proceed irom either the man 
or the woman ; a separation, therefore, on 
account of such refusal, is not divorce, any 
more than on account of a right of property ; 
that is to say, if, of husband and wife, 
either become the owner of the other, a 
separation ensues ; but this separation is not 
divorce ; and so also in the present case. In 
reply to this, Haneefa and* Mohammed argue 
that the husband, when he refuses the faith, 
wilfully withholds the customary benevo- 
lence from his wife, where he has it still in 
his power to continue it to her, by becoming 



BOOK I L CHAP. V.] 



MARRIAGE. 



65 



a Mussulman ; and such being the case, the 
magistrate acts merely as his substitute, in 
effecting the separation ; in the same manner 
as where a husband is impotent, or deprived 
of his penis; but a woman is not empowered to 
divorce, for which reason the magistrate can- 
not be regarded as her substitute in effecting 
the sparation when she has refuse d the faith. 

IT is to be observed, that where the separa- 
tion takes place on account of the woman's 
refusal of the faith, she is still entitled to 
her dower, provided her husband has con- 
summated the marriage, as in this case her 
right has been confirmed by the carnal act; 
but if the marriage should not have been 
consummated she cannot, receive any dower, 
because the separation has proceeded from 
her, and her ritzht to the do ver is not con- 
firmed ; thus the case here is the same as 
where a woman apostatizes or admits the 
son of her husband to carnal connexion. 

And if the conversion of either happen in 
a foreign country, separation takes place upon 
the lapse of the woman's term of probation. 
IF the wife embrace the faith in a foreign 
country, and her husband be an Infidel,- or, 
if a foreigner there becomes Mussulman, and 
his wife be a Majooseea, the separation 
between them does not take place until the 
lapse of three terms of the wife's courses, 
when she becomes completely repudiated. 
The reason of this is, that Islam cannot be 
made an occasion of separation (as has been 
before observed) : and requiring the 
other party to embrace the faith is imprac- 
ticable, as the authority of the magistrate 
does not extend to a foreign land, nor is it 
acknowledged there ; yet separation is in- 
dispensable for the removal of evil ; the 
condition, therefore, of separation (to wit, 
the lapse of three terms of the woman's 
courses), must stand in the place of separa- 
tion effected by the magistrate ; and in this 
rule no distinction is made between a woman 
enjoyed, and one unen joyed. -Shafei tnakes 
a distinction, on this occasion, between a 
woman enjoyed and one unen joyed, in the 
same manner as he distinguishes between 
them when they reside in a Mussulman terri- 
tory, and one of them embraces the faith; 
as has been before explained 

If the wife be an alien, she is not to observe 
an Edit, from separation, in csnsequence of 
her husband's conversion. WHEN a separa- 
tion takes place between husband and wife, 
in consequence of the conversion of the former, 
and the latter is an alien, she is not subject 
to any observance of Edit, according to all 
the doctors. Haneefa holds the rule to be 
the same, where the woman becomes a convert 
and her husband i an alien ; that is, that 
the woman, in this case also, is not subject 
to any observance of Edit but the two dis- 
ciples maintain that she must here observe 
an Edit the same as would be incumbent 
upon her if she Were to come into the Mus- 
sulman territory; as shall be hereafter 
demonstrated. 



The conversion of the ' husband of a 
Kitabeea does not occasion separation. IF 
the husband of a Kitabeea become a Mussul- 
man, their marriage still endures, because 
the marriage of a Mussulman with a Kitabeea 
being legal ab initio, its continuance is so 
a fortiori. 

Case of a convert removing from a foreign 
land into a Mussulman territory. IF either 
husband or wife become a convert to the faith 
in a foreign country, and afterwards remove 
thence into the Mussulman territory, a 
separation takes place between them : this 
is contradicted by Shafei : but if either 
party be brought, as a captive, out of the 
foreign country, separation takes place 
between them, according to all the doctors : 
if, however, both the ' parties be brought 
captives together we hold that there is no 
separation ; whereas Shafei says that separa- 
tion takes place. Hence it may be collected 
that the circumstance of the parties residing 
apart in different countries is held to be a 
cause of separation by our doctors, but not 
that of their capture ; and that Shafei main- 
tains the reverse of this opinion The argu- 
ment of the latter is that separation of 
country is a cause of termination of autho- 
rity, but has no effect in occasioning an 
absolute separation in this case, any more 
than where an alien resides under protection 
in a Mussulman territory, whilst his wife 
remains in her own country ; or where a 
Mussulman qoes under protection into a 
foreign land, leaving his wife in the Mussul- 
man territory : in neither of which cases 
would separation take place, and so in this 
instance likewise : capture, on the other 
hand, leads to this, that the captive is the 
sole and exclusive property of the captor, 
which cannot be established without a ter- 
mination of the former's marriage, as it is 
on the same principle that a captive stands 
virtually released from all hia debts. Our 
doctors, in support of their opinion, argue 
that by operation of country all matrimonial 
intercourse between the parties, whethe 
actual or consequential, is entirely broker 
off, and thus this separation resembles illen 
gality by affinity ; capture, on the otheh 
hand, occasions property in the person, whica 
does not forbid marriage at first, for if 
man contract his slave in marriage, it is 
lawful ; and so, also, it does not forbid the 
continuance of the marriage ; as in the case 
of purchase, where if a person should perchas 
a female slave, the wife of another, the mar 
riage does not, on that account, become null, 
;And in reply to what Shafei has advanced 
with respect t to capture, it is admitted that 
this makes the captive the exclusive property 
of the captor, in respect to substance, but 
the object of marriage (to wit, the use of 
the woman's person), is not substance, and 
therefore capture does not annul the mar- 
riage : moreover, between a protected for- 
eigner and his wife separation of abode <Jbes 
not virtually take place, as his ultimate in- 
tention is to reurn home, whence he may be 



66 



MARRIAGE. 



[VoL. I 



regarded, virtually, as in a foreign country, 
during hit residence in the Mussulman ter- 
ritory. 

A woman, retiring from u foreign to a 
Mussulman country, is at liberty to marry. 
IF a woman come out of a foreign country 
into the Mussulman territory, and there be- 
come either a Zimmee, or a convert to the 
faith, it is lawful for her to marry ;* and 
Haneefa holds that she is not under any 
obligation to observe an Edit. The two 
disciples say that she must observe an Edit, 
because separation takes place upon her en- 
tering the Mussulman territory and she then 
becomes subject to the Mussulman laws. 
The argument of Haneefa is that the Edit 
is a consequence of an antecedent marriage, 
enjoined on account of the importance of the 
matrimonial tie ; but this tie is of no impor- 
tance whatever with respect to foreigners, for 
which reason it is that Edit is not enjoined 
upon a oman who is a captive. 

But if pregnant, she must wait until her 
delivery. IF the woman in question be preg- 
nant, she must not marry until she be deli- 
vered. This is the doctrine of the Zahir 
Zawayet. It is recorded from Haneefa that 
her marriage is approved ; but her husband 
must not have carnal connexion with her 
until after her delivery, as is the rule with 
women pregnant by fornication. The ground 
of Hie former opinion is that the parentage 
of the foetus is ascertained fas from some 
alien] and therefore the former matrimonial 
tie is regarded, with respect to the establish- 
ment of parentage, and must consequently 
be so, with respect to forbidding her marriage 
likew'se, on a principle of caution. 

In a case of apostacy separation takes place 
without divorce. IF either husband or wife 
apostatize from the faith, a separation takes 
place without divorce, according to Haneefa 
and Aboo Yoosaf. Mohammed alleges that 
if the apostacy be on the part of the hus- 
band, the separation is a divorce, because he 
conceives an analogy between this case and 
that of the husband refusing the faith ; for 
as, in the latter instance, he by hit refusal 
appears wilfully to withhold the customary 
benevolsence from his wife, where he has it 
still in his power to continue it to her, so 
likewise in the former, by his apostacy. 
Aboo Yoosaf holds here to his opinion as 
before recited in the case of refusal. Haneefa 
makes a distinction between refusal of the 
faith and apostacy from it ; and his reason 
for this distinction is that apostacy annuls 
marriage, because the blood of an apostate 
no longer remains under the protection of 
the law, and his life is Mobaji [free to any 
one to take ; now divorce is used for the 
purpose of dissolving a marriage which ac- 
tually exists ; and hence apostacy cannot 
possibly be considered as divorce : contrary 
to the case of refusal of the faith, because it 
~ _ 

* Although she be already married in the 
foreign country. 



is on account of the ends of matrimony being 
thereby defeated that separation is enjoined, 
in that instance, as has been already said ; 
and for this reason it is that the separation 
is there suspended upon a decree of the 
magistrate, whereas in apostacy it takes 
place without any such decree. It is to be 
observed, however, that if the apostacy be 
on the part of the husband, his wife is en- 
titled to her whole dower where he has 
had carnal connexion with her or to half 
her dower in defect of this; and where the 
apostacy is on the part of the wife, she is 
in like manner entitled to her whole dower, 
if her husband has had carnal connexion 
with her ; but if not, she has no claim what- 
ever either to dower or alimony, because the 
separation is in this case a consequence of 
her own act. 

But if a man and wife apostatize together, 
their marriage still continues. IF the hus- 
band and wife should both apostatize toge- 
ther, and afterwards return to the faith at 
the same time, their marriage is by a favour- 
able construction of the law, permitted to 
endure. Ziffer says that it is annulled, be- 
cause the apostacy of any one of them for- 
bids the duration of it, and where that 
appears in both, it is found in one of them : 
but our doctors, in support of their opinion, 
cite an instance recorded to have happend 
in the time of the blessed companions [of 
the Prophet], when the tribe of Binncy 
Haneefa, after having apostatized, returned 
to the faith, and the companions did not 
direct them to renew their marriage ; and 
their apostacks were all considered as having 
taken place at the same time, because of the 
uncertainty of the dates. But if after their 
joint apostacy, either the husband or wife 
were singly to reurn to the faith, their mar- 
riage is / dissolved, because here one of them 
persists in apostacy, and that forbids the 
continuance of marriage, the same as it does 
the matrimonial engagement at first. 



CHAPTER VI. 

OF KISSM OR PARTITION 

A man must cohabit equally with all his 
wives. I? a man have two or more wives, 
being all free women, it is incumbent upon 
him to make an equal partition of his coha- 
bitation among them, whether he may have 
married them as virgins or as Siyeebas, or 
whether some of them be of the former 
description, and others of the latter ; be- 
cause the Prophet has said, "The man who 
hath two wives, and who, in partiton, in- 
clines particularly to ONE of them, shall in 



*By Kissm is understood that equal par- 
tition of cohabitation which a husband is 
required, by aw, to make among his wive*, 
where he has a pluralitv of them. 



BOOK III. CHAP. I.] 



FOSTRAGE. 



67 



the day of judgment incline to ont tide" 
(that is to fay, shall be paralytic) ; and it is 
recorded bv Aysha that he made such equal 
partition of cohabitation among his wives, 
saying. "O GOD, I thus make an equal par- 
tition as to what is in my power: do not 
therefore bring me to account for that which 
is not in my power" (by which he metns the 
affections, these not being optional). 

THE wife of a prior marriage, and a new 
wife, are alike in this point, because the 
tradition above cited is general ^ in its appli- 
cation, and also, because partition is one oF 
the rights of marriage, and in these both 
descriptions of wives are equal. 

But the mode of partition is left to him- 
f elf. !T is left to the husband to determine 
the measure of partition ; that is to say, if 
he choose, he may fix it at one day of cohabi- 
tation with each of his wives, successively, 
or more ; and it U also to be remarked that 
by the equality of partition incumbent upon 
the husband is to be understood simply resi- 
dence, but not coition, as the latter must 
depend upon the erection of the virile mem- 
ber, which is not a matter of option, and 
therefore, like the affections, not always in 
the husband's power. 

Partition, where the wives ar* of different 
rank or degree, must be adjusted accordingly. 
IF a man be married t two wives, one of 
them a free woman, and the other a slave, he 
must divide his time into three portions, 
cohabiting two portions with the former and 
one with the latter, because the same is 
recorded of Alee : and also, because, as it is 
lawful to marry a free woman upon a slave, 
but not a slave upon a free woman,* it hence 
appears that the ricrhts of the former in 
marriage are short of those of the latter 
And a Mokatiba, Modabbira. or Am-Walid, 
are, with respect to their right of partition, 
the same as slaves. , 

Partition is not incumbent whilst 9 the 
husband is on a journev. WOMEN haye no 
right to partition whilst their husband is 
upon a journey, and hence, during that 
period, it is at his option to carry along with 
him whomsoever he pleases ; but it is prefer- 
able that he cause them to draw lots, and 
take with him on the journev her upon whom 
the lot may happen to fall. -Shafei says 
that the determination of this point by lots 
is incumbent upon the husband, because it is 
recorded of the Prophet, that whenever he 
intended a journey he caused his wives thus 
to draw lots. Our doctors, however, allege 
that the Prophet's reason for this was only 
that he might satisfy the minds of his wives ; 
wherefore drawinq lots is laudable merely, 
because a man's wives have no claim what- 
soever to partition during the period of their 
husband being on a journey, since he is at 
__ _ -. 

* By marrying one woman upon another is 
to be understood a man marrying a woman 
when he is already possessed of a wife ; the 
expression is merely idiomatical. 



liberty not to carry any of them along with 
him, and consequently it is lawful for him to 
take any one of them. 

THE time of a journey is not to be counted 
against a husband; that is to say, he is 
under no obligation, on hit return, to make 
up for the partition lost within that time, by 
a proportionable cohabitation with the wife 
or wives whom he may have left at home, 
they having no claim whatever to his coha- 
bitation with them during such period. 

I f one wife bestow her turn [of cohabita- 
tion! upon another, it is lawful ; becauw 
Soolah the daughter of Zooma gave up her 
turn to Aysha : but if a woman give up her 
turn, she is not at liberty to resume it, 
because she drops a right which is not as yet 
established in her, and absolute dereliction 
cannot take place unless it be of a right 
already established, wherefore her resump- 
tion here is as if she were to withhold from 
bestowing her turn upon the other. 



BOOK III. 

OF RIZA, OR FOSTERAGE. 

Definition of the term. RIZA, in its legal 
sense, means a child sucking milk from the 
breast of a woman for a certain time, which 
is termed the period of fosterage.* 

Degree of fosterage which occasions prohi- 
bition. PROHIBITION is attached to fosterage 
in whatever degree, if it be found within the 
usual period oT infants subsisting at the 
breast. Shaf?i says that prohibition is not 
established unless the child have sucked the 
breast at least five different times, insomuch 
that if an infant were to suck for any parti- 
cular space of time, whether a day or an 
hour, uninterruptedly, this would not occa- 
sion prohibition, because the Prophet has 
said, "Sucking, or giving suck, for once or 
twice, does not render prohibited." Our 
doctors support their opinion upon the 
authority of the sacred text, GOD saying, in 
the Koran, "YouR MOTHERS WHO HAVE 

SUCKLED YOU ARE PROHIBITED UNTO YOU,'" 

and also upon a precept of the Prophet, that 
"whatever is prohibited by consanguinity, 
is also prohibited by fosterage," -where no 
distinction whatever is made between a 
smaller and a greater degree of it. 



* Fosterage, with respect to the prohibi- 
tions occasion* by it, is of two kinds; 
FIRST, where a woman takes a strange child 
to urse, by which all future matrimonial 
connexion between that child and the woman 
or her relations with the prohibited degrees, 
is rendered illegal ; SECONDLY, where a 
woman nurses two children, male and female* 
upon the same milk, which prohibits any 
future matrimonial connexion between them. 



68 



FOSTERAGE. 



. [VOL. la 



OBJECTION. A greater degree of fosterage 
is essential to the establishment of prohibi- 
tion, because the latter is here founded 
solely in an apprehension of a participation 
of blood, on account of the growth and 
increasing bulk of the body, which cannot 
take place without fosterage, in a consider- 
able degree ; moreover, it occurs in the 
traditions that fosterage is the source of a 
child's growth. 

REPLY. Although prohibition be founded 
in an apprehension of a participation or 
blood, on account of growth, yet that is a 
point which is incapable of being absolutely 
ascertained, and hence prohibition by foster- 
age is attached, not to the degree, but to the 
more act of fosterage, which is the occasion 
of such increase of growth : and with respect 
to the saying of the Prophet, as mentioned 
byShafei, our doctors reply that if the date 
of descentf of the text [of the Koran] before 
quoted was posterior to that of this saying, 
its authority is thereby superseded, and if it 
was prior thereto, yet the saying is rejected, 
because it contradicts the text. 

Length of the period of fosterage. 
THE period of fosterage is thirty months, 
according to Haneefa. The two disciples 
hold it to be two years, and of the same 
opinion is Shafei differ maintains that it 
is three years, because something in addition 
to two years is absolutely requisite (accor- 
ing to what shall be hereafter shown), and 
such addition is fixed at one year, because 
that space admits of the child's state under- 
going a complete alteration. The argument 
of the two disciples is the word of GOD, to 
wit, "HIS [the child's] TIME i f rf THE WOMB}., 

AND [until] HIS WEANING IS THIRTY 

MONTHS :" now the smallest space of preg- 
nancy is six months, and hence two years 
remain for fosterage ; moreover, the Prophet 
has said that "after two years there is no 
fosterage." The arguments of Haneefa are 
twofold ; FIRST the text already quoted, 
where it appears that GOD makes mention of 
two things, one the Hamal [or time of ges- 
tation] , and the other the Fi sal [or wean- 
ing], for both of which he indiscriminately 
mentions one period, namely, thirty months, 
wherefore it applies to each in two ; the 
same as in a case of two debts ; that is to 

Arab. Jazeeyat, a term which has no 
sense in our dictionaries in any manner 
applicable to the present case. ft appears, 
from the context, to signify a participation 
of bodily substance, causing two persons to 
partake of one common nature.. 

f The Koran was declared by Mohammed 
to have been delivered down to him in 
different portions at various times, and those 
he termed the Noozools, or descents. 

JArab. Hamal. By this is generally 
understood pregnancy ; but as the text here 
qupted ]}a reference to the child, and not to 
the mother;, the translator is under the neces* 
sity of rendering it in a phrase applicable to 
the fdrmer. 



say, if a man (for example) were to make a : 
declaration that he owed such a person "one 
thousand Dirms, and five bushels of wheat, 
payable within two months," this period of 
two months applies to each debt equally, 
and so in this case likewise. It may indeed 
be objected that, admitting this, it would, 
follow that the time of being in the womb is 
also thirty months, whereas it is otherwise, ' 
pregnancy being by law restricted to two 
1 years ; but to this we reply, that there is a cause 
, of restriction short of that period operating 
upon Hamal (is being recorded in the tra- 
ditions that a child cioes not remain in the f 
wornb of the mother above two years), where- 
as there is none upon Fisal, which of course 
stands as it appears to be : moreover, as a 
sucking child is nourished at the breast for . 
two y*>ars, so is it also after the expiration of 
that term ; for the weaning is not precisely . 
determined to any particular period, but is 
effected by degrees, as the child insensibly , 
forgets the breast and inclines to other food : 
it is therefore necessary that some space for 
fosterage be allowed in addition to the two 
years, and this additional space is fixed at 
six months, being the shortest term of preg- 
nancy, as the lapse of that period affords, 
reason for altering the manner of the child's 
subsistence, because the subsistence of a 
foetus is irreconcilable with that of a suck- 
ling ;* and with respect to the traditionary 
saying of the Prophet, as cited by the two 
discipes, it has reference soUly to the period 
of the claim of fosterage ; that is to say, it 
only goes to show that no obligation arises 
from fosterage ; so as to render payment or 
hire of the same obligatory upon the [child's] 
father, beyond the space of two years ; and 
the text of the Koran, which says, "MOTHERS 

SHOULD SUCKLE THEIR CHILDERN FOR TWO' 

YEARS," has also reference to the perioJ of 
the claim of fosterage. 

Sucking ''beyond the term oj fosterage is 
not an occasion of prohibition. IF a child 
continue to suck after the proper period of 
fosterage is elapsed, prohibition is not hereby 
established ;t because the Prophet has de- 
clared that there is no fosterage after the 
expiration of the proper period ; and also, 
because prohibition is not established by any 
fosterage, except such as is a cause of growth 
and increase, which are obtained only by 

*T hat is to say, it is to be supposed that 
within the last six months the woman may 
have conceived, and may, at the end thereof, 
produce a child ; and a woman cannot, with- 
out injuring the foetus, give suck to another, 
either during or after her pregnancy. 

tThat is to say, if, after the expiration of 
the proper period of fosterage, another child , 
be brought to the breast, and the former 
nursling still continue to suck, these two- 
are not hereby prohibited to each other ia 
marriage, although they would have been 4 
so if they sucked together during the foster- 
age of the first child. 



BOOK UJ.-CHAP. I.] 



the fosterage within improper peiriod, since 
grown tip persona would opt firvd Any effec- 
tual nourishment from sucking. ;,. ,. '. 

A CHILD'S forsaking the breast before , the 
expiration of /the pefi,o,<} of fostetag$ is not 
regarded ; that i$ to s,ay, if a child withhold , 
from taking its milk before., the period of 
fosterage has elapsed, ar*4 there be still milk 
in the mother' 5 breast, an,d ajoy other infant 
stick the milk before the expiration of that 
period, in this case prohibition by fosterage 
is established between those children, This 
is the ahjr Rawayat Hasan has recorded 
it asan opinion of Haneefa. that this is the 
case only where the first child ha< not as yet 
becoriie attached to another species of food, 
so as to be capable of subsisting altogether 
without milk.; but if the child have adopted 
entirely another species of food, this circum- 
stance is to be considered as a weaning, and 
prohibition by fosterage cannot in this case 
be established, because where the child is 
arrived at such a state as that other food 
suffices, the manner of its subsistence is 
altered, and that growth and increase which 
the child derived from sucking is at an end, 
wherefore the prpperty of participation of 
blood, Which is the occasion of prohibition, 
li not afterwards found. 

Is the sucking of a child, after the expi- 
ration of the period of fosterage, allowable 
or not P-^-Urton this point there are various 
opinions ; some have said that it is not so, 
because the act of suckling at all is per- 
mitted solely out of necessity, the milk being 
a constituent part of the woman's frame, the 
use of any portion of which, except as a 
matter of necessity, is prohibited ; and this 
necessity ceases upon the expiration of the 
period of fosterage. 

Exceptions from the general ruin of pro- 
hibition by fosterage ''WHATEVER is pro- 
hibited by CONSANGUINITY is so likewise by 
FOSTERAGE" (according to the saying of, the 
Prophet already quoted), except a sister's 
mother by fosterage,* whom it is lawful for 
a man to marry, although he cannot lawfully 
marry his sister's mother by blood, as she 
must either be his own mother, or the enjoyed 
of hjis father, both of whom are prohibited 
to him ; contrary to her mother by fosterage, 
A sister's mother by fosterage may be con- 
ceived in three different ways ; FIRST, where 
a man has a sister by blood, who has a foster- 
mother, whom he may lawfully marry : 
SECONDLY, where a man has a foster-sister, 
who has a mother by blood, whom he may 
likewise lawfully marry ; and THIRDLY, 
where a male and female infant, between 
whom there is no affinity, suck at the breast 
of one woman, and the female infant also 
sucks at the breast of another woman, in 
which case the male infant may lawfully 



*This is a very equivocal and vague ex- 
pression, as appears by the succeeding defi- 
nition of the various descriptions to which 
it applitg. 



marry -the test; wpn&ani, ,whp, is^he, fosttr- 
rnother.oi the femftle infant) that is tp say, 
of hw-fofiter-tiste(r,)r < , . - . - ' 

A, MAN jway^alaO lawfully , marry 
of his foster*aon, although tU pe, 
for him to marry the sister of his 
blood, as she must be either Uis o 
ghter, at the, daughter of t hi 
bofch of wharn:ape,prpbil?it$4<l 



is not lawful for a man to marry t^, wife pf 
his foster-athr, or, of hisi fostmsqq, (tntjhe 
same manner as h is. prohibited, from jO^FfY; 
ing the wife of his- natural father, prison), 
because of the tradition before quoted. v , , 

OBJECTION It ha been declared, ,in th* 
sacred writings, that it is lawful for rnn to 
nvi-rry the wives of their sons by. blood sjhoujd 
this particular restriction to blood should 
seem to imply that marriage with the wives 
of foster- sons was lawful ; whereas it is 
otherwise. 

REPLY. The restriction above mentioned 
refers to the exclusion of the wives of 
children by descent, and not to the exclusion 
of the wives of foster-sons, for th,e reasons 
already mentioned. 

PROHIBITION is attached to the milk 01 the 
man (that is to sav, to the milk of which 
he is the cause) ; if, for .example, a woman 
nurse a female child, the, latter is prohibited 
to her husband, and to his father and son, 
because the husband, through whom the 
woman's breasts have been filled with milk, 
is as a father to that child ft is recorded, 
as an opinion of Shafei, that prohibition in 
not attached *> the milk of man ; because 
this prohibition arises from an apprehension 
of participation of blood; and the milk is a 
secretion from the blood of the woman, and 
not of the man. The arguments of our 
doctors in this case are threefold; FIRST, 
the saying' of the Prophet, as before quoted, 
"Whatsoever is prohibited by consanguinity 
is also prohibited by fosterage, "and -pro- 
hibition by consanguinity being found in 
both father and mother, it follows that it is 
found in both these relations by fosterage; 
SECONDLY, the Prophet once said to Aysha 
(who had complained to him of Atia, the 
brother of Aboo Keis, appearing before her 
whilst she had only a single cloth upon her), 
"The act of AFLA, in thus approaching you, 
is of no consequence, is he is your paternal 
uncle by fosterage;" which proves that 
affinity by fosterage is established on tne 
paternal side, and that as the woman who 
suckles is the child's mother, so is her hus- 
band its father, *>y fosterage ; THIRDLY, the 
man is the cause of the entrance of the milk 
into the woman's breasts, and therefore the 
milk is, out of caution, to be regarded (with 
respect to the point of prohibition) as de- 
riving its existence from him. . 

A MAN may lawfully marry the sister of 
his foster-brother, it being allowed to him to 
marry the sister of his brother by blood 
(that is, the maternal sister of his paternal 
brother). 



70 



FOSTRAGE. 



[VOL. I. 



IT is to be observed as a rule that when 
i male and female infant suck from one 
breast, they are prohibited to each other 
in marriage, because they have one common 
mother, and are therefore as brother and 
sister. 

IT is not lawful for a female to marry 
any of the sons of the woman who has 
suckled her, because they are her brothers, 
nor the sons of those sons, because they are 
her nephews. 

IT is not lawful for a male to marry the 
husband's sister of the woman who has 
suckled him, as she is his paternal aunt by 
fosterage. 

Cases of admixture of the milk with any 
foreign substance. IF the milk be drawn 
from the nurse's breast, and mixed with 
water, prohibition is still attached to it, 
provided the former exceed the latter in 
quantity ; but if the water exceed, pro- 
hibition is not attached. Shafci maintains 
that prohibition is attached, in the latter 
case also, because there is actually some of 
the milk in that water, and therefore it is 
indispensable to be regarded, especially in 
a point of prohibition, that being a matter 
of caution. TO this our doctors reply that 
anything less in quantity than that with 
which it is mixed is regarded as virtually 
non-existent, as in the case of a vow, for 
instance, where, if a man swear that "he 
will not drink milk/' and he afterwards 
drink it mixed with a greater proportion of 
water, he is not forsworn. 

IF the milk be mixed with other food, 
prohibition is not attached to it, although 
the former exceed the latter in quantity 
This is according to Haneefa. The two 
disciples say that if the milk exceed, pro- 
hibition is attached. The compiler of the 
Hedaya remarks that this opinion of the two 
disciples proceeds upon a supposition that 
the milk and victuals do not undergo any 
culinary preparation after admixture ; but 
that, if they be boiled, or otherwise prepared 
by fire, all the doctors admit that prohibition 
is not then occasioned. The two disciples 
argue that regard is to be had to that which 
exceeds (as in the case of mixing milk with 
water), provided it have not undergone any 
change by boiling or other cause. The 
argument of Haneefa is that the food is the 
subject, and the milk only a dependent, with 
respect to the end it is intended for, to wit, 
sustenance ; the case is therefore the same 
as if the proportion of the food (exceeded 
that of the milk. t 

IF the milk be mixed with medicine in a 
proportion exceeding the latter in quantity, 
prohibition is attached to it, because the milk 
is designed for sustenance, which is the end, 
and the purpose of the medicine is only to 
s|rengthen the child's stomach, or to forward 
digestie. 

IF the milk of the nurse be mixed with 
that frf an animal, in a proportion exceeding 
the latter in quantity, prohibition is attached 
L^ u . u,,* not if the milk of the animal ex- 



ceed the other ; regard being here had to that 
which exceeds, as in the admixture of milk 
with water. 

Or with the milk of another woman. IF 
the milk of one woman be mixed with that 
of another, in this case Aboo Yoosaf holds 
that regard should be had to the excess. 
that is to say, that prohibition is attached to 
that woman's milk which exceeds the milk of 
the other in quantity, because here the two 
milks, when mixed together, become as one 
substance, and hence the smaller quantity is 
to be considered (in the effect produced) as 
a dependant on the greater quantity, Mu- 
hammed and Ziffer contend that prohibition 
is attached to both milks equally, as both 
are of the same nature and a thing 
cannot be said to exceed a homogeneous 
thing, because the admixture with any ar- 
ticle of a homogeneous nature adds to the 
sum, but does not occasion any destruction 
or change in the matter ; and the end in- 
tended is the same in both. There are two 
opinions recorded from Haneefa upon this 
subject, one coinciding with Aboo Yoosaf, 
and the other with Mohammed. 

Prohibition is occasioned by the milk of a 
virgin. IF the breasts of a virgin should 
happen to produce milk, prohibition is at- 
tached to it, that is to say, if a male child 
were to subsist upon it, the virgin becomes 
his mother by fosterage, and his marriage 
with her is prohibited, according to the 
word of GOD in the Koran, "Your MOTHERS 

WHO HAVE SUCKLED YOU ARE PROHIBITED 

UNTO YOU," which text being generally ex- 
pressed, applies to all women alike : more- 
over, the milk of the virgin is a cause of 
growth in the child, which induces an ap- 
prehension of participation of blood. 

Or of a corpse IF milk be drawn from 
the breasts of a deceased woman, prohibition 
is attached to it. This is contrary to the 
opinio* of Shafei, who says that in the 
establishment of prohibition by fosterage, 
the primary subject of such prohibition is 
the woman whose milk has been sucked by 
the child, the prohibition pervading through 
the medium of that woman to othtrs (her 
relatives!, but, by her decease, the original 
subjet of prohibition is removed^ she being 
then a dead substance ; whence it is that if a 
man were then to commit the carnal act with 
her, he would not be subject to the punish- 
meat of fornication, nor would ^ prohibition 
by affinity be by that act established. The 
argument of our doctors is that prohibirion 
by fosterage arises from an apprehension of 
participation of blood, which ^ appear in 
the increasing growth of the [child's] body, 
and this last ts occasioned by milk ; as in the 
present case. 

Cases tn which mil^ does not occasion 
prohibition. IF a woman's milk be adminis- 
tered to a child in a glyster, prohibition by 
fosterage is not attached to it. It is re- 
corded from Mohammed that prohibition is 
thereby established, in the same manner as 



BOOK III. CHAP. I.] 



FOSTERAGE. 



71 



a fast would be vitiated by it : but the 
reason of this apparent inconsistency (ac- 
cording to the Zahir Rawayet) is that the 
cause of violating the fast is the restoration 
of the body, which is effected by the glyster : 
whereas the cause of prohibition by foster- 
age is the increase of the body's growth, 
which is not thereby effected, nothing being 
sustenance to men except what is adminis- 
tered by the mouth. 

IF a man's breasts should happen to pro- 
duce milk, prohibition is not attached to it, 
because the substance thus produced is not, 
in fact, milk, and consequently increase of 
growth is not obtained by means of it. The 
principle upon which this proceeds is that 
milk cannot be secreted in the breasts of 
any person but one who is capable of child- 
bearing. 

PROHIBITION by fosterage is not attached 
to the milk of a goat (or other animal) that 
is to say, if two infants, a male and a female, 
were to subsist together, upon the milk of 
one goat, prohibition by fosterage is not 
established between them, because between 
mankind and brutes there can be no 
participation of blood (that is to say, such 
participation as would occasion affinity) and 
prohibition by fosterage arises from partici- 
pation of blood. 

Case of one of two wives suckling the other. 
IF a man marry an infant and an adult. 
and the latter should give milk to the former, 
both wives become prohibited with respect 
to that man [th^ir husband], because if they 
were to continue united in marriage to him, 
it would imply the propriety of joint cohabi- 
tation with the foster-mother and her foster- 
daughter, which is prohibited, in the same 
manner as joint cohabitation with a natural 
mother an-d daughter It is to be observed 
on this occasion, that if the husband should 
not have had carnal connexion with the adult 
wife, she is not entitled to anv dower what- 
ever because the separation has proceeded 
from her, before consummation : bi^t th 
infant has a claim to her half dower, the 
separation not having proceeded from her. 
OBJECTION. The separation proceeds 
from her, because sucking the milk from the 
breast was her act. 

REPLY. Although the sucking was cer- 
tainly her act, yet the act of such an one is 
not considered as destructive of her right, for 
which reason it is that if she should happen 
to kill her inheritee, this would not set aside 
her right of inheritance. If, moreover, it 
should appear that the adult had acted with 
any sinister view of dissolving the marritge, 
the husband is in this case empowered to 
take from her the half dower which he pays 
to the infant ; but not unless ihe have actec 
with such a view, even though she were 
aware of the infant being the wife of her 
husband. It is recorded from Mohammed 
that the hushand u authorized to take the 
I infant's half dower from the adult, in either 
case, that is to say, whether a dissolution oi 
the marriage may have b**n her intention po 



not ; but the former (which is the Zahir 
Rawayet) is the more orthodox opinion, be- 
cause although the adult has by her act 
ixed and rendered binding upon the hui- 
>and the half dower aforeiaid (which had 
before stood within the possibility of drop- 
ping*), and her so doing amounts to a dam- 
age, yet she here stands (not us the actual 
perpetrator, but) as the cause of the damage, 
iince the act of giving her milk to the infant 
s not the occasion of dissolving the marriage 
anv further than as it induces a consequence 
of joint cohabitation with a step-mother and 
step- daughter: moreover, the annulling of 
a marriage is not what renders a dower ob- 
igatory, but is rathrr the occasion of its 
rlrooning ; but thp half Howcr is incumbent, 
in the manner of a Matat, or present, in 
compliance with established custom ; and thp 
innulling of thp marriage is the condition of 
its becoming incumbent ; ami in this view 
rho adult is the cause of the damage ; and as 
being the cause onlv. and not the actual per- 
petrator, transgression is ma Ho a condition 
of her responsibility, the same as in the case 
of digging a well, that is to say, if a person 
were to transgress, in digging a well, hy 
sinking it in another person's around, or in 
the high way, he is responsible for the Deevat 
of anv one who mi pht happen to full into it. 
whereas, if thp well wore sunk in his own 
ground, he would not hp resnonqihle: now 
this transgression is not foiinH in the adult. 
unless whore she is aware of the infant being 
the wife of her husband, and that her view 
is sucking it is a dissolution of the marriage; 
but where she is not aware of that circum- 
stance, or hpirft so. vet gives her milk, not 
with anv view of dissolving the marriage, 
but rather of preserving the infant from 
perishing,, in neither of these cases is trans- 
gression supposed to pxist ; and, in the same 
minner, it does not exist, if she knew that 
the infant is the wife of h^r husband, but be 
not aware that her sucking it will occasion 
a dissolution of thp marriagp. 

OBTFCTION. No regard is paid to igno- 
rance of thp law in a Mussulman territory ; 
how, therefore, can ignorance be pleaded in 
her excuse in the present case ? 

REPLY Regard is here paid to her igno- 
rance, not in order to avert the ^ sentence of 
the law (which inducps responsibility upon 
her), but aolely to avert the construction of 
intent of dissolution, or of wilful transgres- 
sion, to which her act might otherwise be 
liable, and which being thus disproved, she 
is exonerated from responsibility as these 
are the onlv causes thereof, and neither of 
them can apply to her. 

Evidence to fosterage require* the full- 



That is to say, the obligation of which 
might possibly have been annulled or can- 
celled by the occurrence of some accident 
previous to the payment of it, such *as the 
decease of the infant before consummation of 
the marriage &c. 



72 



number of witnesses. THE evidence of 
woman alone is not sufficient to establish 
fosterage ; nor can it be established but on 
the testimony of two men, or of one man and 
two women. Imam Malik has said that it 
may be established on the evidence of one 
woman, provided she be an Adil, because 
prohibition is one of the rights of the law, 
and may therefore be established upon a 
single information, as, for instance, where 
a person purchases flesh meat, and any one 
bears testimony to its being part of a 
Majoosee sacrifice, in which case prohibition 
is established with respect to it. The argu- 
ment of our doctors is that the establishment 
of prohibition in marriage is in no respect 
different from the extinction of a right of 
possession ; and the annulling of a right of 
possession cannot take place but upon the 
evidence of two men, or of one man and two 
women ; contrary to the case of flesh meat, 
as the prohibition to the eating may be 
established without affecting the proprietor's 
right of possession, it still remaining his 
property under that prohibition : the pro- 
hibition of this article, therefore, appears to 
be merely a matter of religion, and in which, 
consequently, a single evidence suffices. 



BOOK IV. 

OF TALAK, OR DIVORCE. 

Definition of the term. TALAK, in its pri- 
mitive sense, means dismission; in law it 
signifies the dissolution of a nfarriage, or the 
annulment of its legality, by certain words. 
Chap. I Of the Talak al-Sonna, or Re- 
gular Divorce. 

Chap. II Of the Execution of Divorce. 
Chap, III. Of Delegation of Divorce. 
Chap. IV. Of Divorce by a Conditional 

Vow. 

Chap. V. Of the Divorce of the Sick. 
Chap. VI. Of Rijat, or returning to a 

divorced Wife. 
Chap. VII. -Of Aila. 
Chap. VIIL-OfKhoola, 
Chap. IX.-Of Zihar. 
Chap. X. Of Laan, or Imprecation. 
Chap. XI Of Impotence. 
Chap. XII. Of the Edit. 
Chap. XIII. Of the Establishment of 

Parentage. 
Chap. XIV. Of Hizanet, or the Care of 

Infant Children. 

Chap XV.- Of Nifka, o^Subsistence. 
CHAPTER I. 

OF TALAK-AL-SONNA, OR REGULAR DIVORCE*. 

Distinctions of divorce. DIVORCE is of 
three kinds ; FIRST, the Aksan, or most 



DIVORCE. ]VoL. I. 

laudable :-- SECOND, the Hoosn, or laud- 
able (which are the distinctions of the 
Talak-al-Sonna; ; and THIRD, the Biddat, or 
irregular. 

Talak Ahsan.THE Talak Ahsan, or most 
laudable divorce, is where the husband 
repudiates his wife by a single sentence, 
within a Tohr (or term of purity),* during 
which he has not had carnal connexion with 
her, and then leaves her to the observance of 
her Edit, or prescribed term of probation. 
This mode of divorce is termed the most 
laudable, for two reasons ;- FIRST, because 
the companions of the Prophet chiefly 
esteemed those who gave no more than one 
divorce until the expiration of the Edit, as 
holding this to be a more excellent method 
than that of giving three divorces, by repeat- 
ing the sentence on rach of the two succeed- 
ing Tohrs : SECONDLY, because in pursuing 
this method the husband leaves it still in his 
power, without any shame, to recover his 
wife, if ke so inclined, by a reversal os 
the divorce during her Edit : this method is, 
moreover, the least injurious to the woman, 
as she thus remains a lawful subject of 
marriage to her husband even after the 
expiration of her Editf which leaves a 
latitude in her favour unreprobated by any 
of the learned 

Talak Hoo^n.--TuE Talak Hoosn or 
laudable divorce, is where a husband repu- 
diates an enjoyed wife be three sentences of 
divorce, in three Tohrs. Imam Malik asserts 
that this method classes with the Biddat, or 
irregular, and that no more than one divorce 
is admitted as unexceptionable, because, as. 
being in itself a dangerous and disapproved 
procedure, it is only the urgency of relese 
from an unsuitable woman thit can give a 
sanction to divorce; and this urgency is- 
fully answered by a single Tohr. The Argu- 
ments of our doctors on this topic are t vo- 
fold : FmsT, a precept of the Prophet 
deHvercd to Ebn Amir, "One thing required 
by tlfe SONNA is that ye wait for the TOHR 
and pronounce a divorce in each TOHR ;" 
SECONDLY, the propriety of a divorce rests 
merely upon the establishment of the actual 
urgency itself; that being a matter concealed 
and unascertained [but by virtual proof.] 1 
and the act of proceeding to divorce at a time 
when the desire of coition with the woman 
is fresh renewed (to wit, at the recommence- 
ment of her Tohr), is a proof of the urgency ; 
opposition to Talak Riddat, which signifies 
a novel, unauthorized or heterodox mode of 
divorce : the terms regular and irregular are 
here adopted as being the most familiar. 



*Talak- al-Sonna literally means "divorce 
according to the rules of the Sonna," in 



Meaning the space which intervenes be- 
tween the menstrual fluxes. 

[Contrary to any other mode of divorce, 
as a wife repudiated in any other way cannot 
be again married to her first husband, unless 
she be previously married to, and divorced 
by, another man. 



BOOK IV. CHAP. I.] 



DIVORCE. 



and the repetition of divorce at the two 
subsequent returns of the Tohr amounts to 
no nure than a repetition of the proof, and 
is therefore allowed of. Some of the learned 
have said that, in this species of divorce, it 
is most advisable that the husband delay 
pronouncing the first sentence of it until 
towards the termination of the Tohr, so as 
that the Edit may not be too much pro- 
tracted .' but it is evident that the husband 
should rather pronounce the divorce at the 
commencement of the Tohr, because, if he 
were to delay it, he mijht probably De 
tempted to have carnal connexion with the 
woman in the interim, under an intention of 
divorcing her, and then divorce her after 
such carnal connexion, which is forbidden. 

Talak Biddat. THE Talak Biddat, or 
irregular divorce, is where a husband repu- 
diates his wife by three divorces at once, 
(that is, included in one sentence), or where 
he repeats the sentence separately, thrice 
within one Tohr ; and if a husband give 
three divorces in either of those ways, the 
three hold good but yet the divorcer is an 
offender against the law. 

SHAFEI has said that all these three de- 
scriptions of divorce are equally unexcep- 
tionable and legal, because divorce is in itself 
a lawful act, whence it is that certain laws 
have been instituted respecting it ; and this 
legality prevents any idea of danger being 
annexed to it : moreover, divorce is not pro- 
hibited, even during the woman's courses, 
the prohibition there applying to the pro- 
traction of the Edit, and not to divorce. 
Our doctors, on the other hand, say that 
divorce is in itself a dangerous and disap- 
proved procedure, as it dissolves marriage, 
an institution which involves many circum- 
stances as well of a temporal as of a spiritual 
nature ; nor is its propriety at all admitted, 
but on the ground of urgency of release from 
an unsuitable wife : and there is no occasion, 
in order to procure this release, tt> give three 
divorces at once, whereas there is an erfcuse 
for giving three divorces separately irt three 
Tohrs, as this exhibits repeated proofs of the 
urgency of it : and with respect to what 
Shafei advanc>s, that "the legality of 
divorce prevents any idea of danger being 
annexed to it," we answer that the legality 
of divorce, in one respect (that is to say, 
inasmuch as it is a destroyer of subjection), 
does not admit the idea of its being danger- 
ous, but that, in another respect (to wit, its 
occasioning the dissolution of marriage, which 
involves concerns both of a spiritual and 
temporal nature), it must be considered as 
attended with danger. 

THE pronouncing for two divorces within 
one Tohr comes under the description of 
Biddat, or irregular, the same as that of 
three divorces, as already intimated. 

A QUESTION has arisen among the learned, 
whether the pronouncing of a single divorce 
irreversible within one Tohr be of the 
description of Biddat or not ? Mohammed, 
in the Mabsoot, has said, ' 'Whoever gives 



an irreversible divorce, although it be within 
the Tohr, forsakes the Sonna, as there is no 
urgent necessity for such a sentence to effect 
release from the wife, since by the lapse of 
the Edit that end is obtained ;" but again, in 
the Zeeadat, he says that this method is not 
to be reprobated, on account of the occasional 
urgency of immediate release, which by an 
irreversible divorce is obtained, it not being 
then suspended upon the lapse of the Edit. 

Points to be attended to in adhering to the 
Sonna divorce. SONNA [that is, attention to 
the mode prescribed by the Soona] in divorce 
appears in two shapes, adherence to number, 
and to time ; to the former, by restricting 
the sentence to that of a single divorce 
reversible, in which the enjoyed and the 
unenjoyecl wife are the same ;~and to the 
latter (in which the enjoyed wife is solely 
considered), by pronouncing the divorce in a 
Tohr during which the husband has not had 
carnal connexion with her, because it is 
the proof of urgency that is regarded ; and 
the act of proceeding to a divorce at a time 
when the desire* of coition with the woman 
is fresh renewed (as at the recommencement 
of her Tohr), is the best proof of such 
urgency : for during the actual time of the 
courses the woman is not an object of desire, 
and in a Tohr where she has been enjoyed, 
desire is lessened towards her. With respect 
to an unenjoyed wife, the Tohr and the 
courses are equal, that is to say, the pro- 
nouncing of divorce upon her whilst she is 
in the latter situation is not irregular, nor 
reprobated, any more than whilst in the 
former. This is contrary to the opinion of 
Ziffer, he considering an unenjoyed wife in 
the same point of view as one enjoyed : but 
our doctors observe that the desire of coition, 
with respect to an unenjoyed woman, is ever 
fresh, and is not lessened by the circum- 
stance of her courses, so long as the hus- 
band's object (namely, coition), remains 
unobtained ; whereas, with respect to an 
enjoyed wife, desire is renewed upon the 
Tohr. 

Mode of adherence to the Sonna in repu- 
diating a wife not subject to the courses. I? 
the wife be a person who, from extreme youth 
or age, is not subject to the courses, and her 
husband be desirous to repudiate her by three 
divorces in the regular way, he is hrst to 
pronounce a single sentence of divorce upon 
her, and at the expiration of one month 
another, and in like manner a third at the 
expiration of the next succeeding month ; 
because the term of one month corresponds 
with a return of the courses, as is mentioned 
in the KoRAN.^It is here to be observed that 
if the first divorce be given in the beginning 
of the month, the three months from that 
period are to be counted by the lunar calen- 
dar, and if in the middle of it, by the number 
of days, with respect both to the completion 
of divorce and of the Edit.-This is the rule 
with Haneefa.-The two disciples maintain 
that the second and third months dre to be 
invariably counted by the lunar calendar. 



74 



DIVORCE. 



[VOL. 



the deficiency of the first month to be taken 
from the fourth succeeding month, so as to 
complete it. And it is also to be observed 
that it is lawful for the husband to divorce 
this wife immediately after carnal connexion, 
without the intervention of any time between 
the embrace and the divorce. Ziffer says 
that the husband ought to allow the inter- 
vention of a month, because the term cor- 
responds with a return of the courses, and 
also, because in consequence of thi embrace 
desire becomes languid, and is not renewed 
until after the lapse of som^ time Our 
doctors argue that there can be no appre- 
hension of pregnancy with respecc to the 
woman in question ; and divorce, after the 
carnal embrace, in the case of a woman who 
is subject to the courses, is not reprobated on 
any other account than as it induces a possi- 
bility of pregnancy, which renders the dura- 
tion of her F.dit dubious, that of a precjnant 
woman being determined by her cl-livery, 
and, of one not pregnant, by courses ; and 
as to what Ziffer alleges, that "desire becomes 
languid in consequence of the embrace," it 
may be replied, that although this be ad- 
mitted, yet in the present instance desire is 
greater than in common cases, as the husband 
can indulge his carnal appetite with such a 
wife without any apprehension of her pro- 
ducing children, the support of whom might 
fall upon him ; she therefore is an object of 
desire to him at all times equally, so that this 
state [of a woman not being subject to the 
courses] is the same as the state of actual 
pregnancy ; now it is lawful to divorce a 
pregnant wife immediately after carnal con- 
nexion with her, because no doubt is induced 
with respect to the duration of her Edit, and 
the time of pregnancy is a time of desire, as 
a husband feels desire towards a pregnant 
wife, either because she produces a child to 
him, or because the embrace with her does 
not occasion pregnancy ; his desire, therefore, 
is not lessened towards such a wife by enjoy- 
ment. 

Or one who is pregnant. IF a man be de- 
sirous of repudiating his pregnant wife by 
three divorces in the regular way [that is, 
according to the Sonna], he is fust to pro- 
nounce a single sentence of divorce upon her, 
and at the expiration of one month another, 
and in the same manner a third at the ex- 
piration of the next succeeding month. This 
is according to Haneefa and Aboo Yoosaf. 
Mohammed and Ziffer say that the Talak-al- ' 
Sonna, with respect to a pregnant woman, 
consists in giving her a single divorce only, 
because divorce is in itself a dangerous and 
disapproved procedure ; moreover, the only 
rule instituted by the law ip effecting a tri- 
plicate divorce is, that the husband first pro - 
nounces one divorce, and at the expiration 
of a month, or the passing of the next 
courses, another and in the same manner a 
third at the expiration of the following 
month or the passing of the next succeeding 
courses^; now the courses do not occur to a 
pregnant woman, nor does the lapse of a 



month stand in place of a return of her 
courses (as with a woman whose youth or age 
prevents her having them), her whole period 
of pregnancy being as one long Tohr ; and 
hence it follows that it is improper to pro- 
nounce more than a single sentence, the rule 
of the Sonna being restrictive to one divorce 
in one Tohr. To this Haneefa and Aboo 
Yoo'af reply that, although divorce be in it- 
self a dangerous and disapproved procedure, 
yet it is admitted on the ground of urgency, 
and the lapse of a month is the proof of that 
urgency, and is therefore to be regarded here, 
the same as in the case of a woman whose 
youth or age prevents her having the courses : 
the foundation of this is that the period in 
question is such a time as affords a renewal 
of desire to persons in health and vigour, and 
therefore the act of divorce being proceeded 
in at such a season affords proof of the ur- 
gency of it, with respect to a pregnant woman, 
the same as to any other ; contrary to a wo- 
man whose Tohr is long [that is, by comii- 
tution or accident protracted to any unu ual 
length], as the lapse of a month is not a proof 
of necessity with respect to such an one ; this 
proof of necessity being found in her only on 
the renewal of the Tohr after the courses, 
the recurrence of which, with regard to her, 
is at all times possible, whereas, with regard 
to a pregnant woman, it is impossible. 

Case of divorce pronounced during men- 
struation. IF a man repudiate his wife 
during her courses, it is valid ; because, 
although divorce within the .term of the 
courses be disapproved, yet it is lawful, 
nevertheless, as the disapproval is not on 
account of any thing essential, but merely 
because a divorce given during the courses 
occasions a protraction of the Edit. This 
kind of disapproval, or interdict, is termed 
Nihee-le-ghirehee,* and does not forbid 
legality, whence a divorce given during the 
courses is valid ; but yet it is laudable that 
the husband reverse it as it is recorded that 
the, son of Omar having divorced his wife 
during her courses, the Prophet desired Omar 
to command his son to take her back again ; 
which tradition shows that divorce during, 
the courses is valid, but that reversal is in 
this case laudable. This doctrine of the 
laudability of reversal is maintained by 
many of our modern doctors ; but it is certain 
that, in this case, reversal is not only laud- 
able, but incumbent, for three reasons ; 
FIRST, in the tradition abrwe quoted, the 
Prophet desires Omar positively "to com- 
mand his son," and command is always in- 
junctive ; SECONDLY, the pronouncing of 
divorce during the courses is an offence, 
which it is incumbent upon a man to expiate 
by every means within his power ; and this 
may be effected, in the present instance, by 
doing away its consequence, namely, the 
Edit ; THIRDLY, the protraction of the Edit 



This may be rendered prohibition for 
another reason. 



BOOK IV. CHAP. I,] 



DIVORCE. 



75 



is injurious to the woman, wherefore reversal 
is incumbent, the order that she may not be 
subjected to injury : thus it is indispsnsably 
incumbent upon the husband to reverse the 
divorce, when given during the courses ; 
after which, when she has become purified 
from her courses, and has again had them, 
he may then either divorce her on the com- 
mencement of her second succeeding Tohr, or 
suffer her to remain The compiler of the 
Hedaya observes that this last is what is said 
in the Mabsoot. Tehavee has said that, if 
the husband choose he may regularly divorce 
his wife on the commencement of the Tohr 
immediately succeeding the courses in which 
he had given divorce, and reversed it, as 
above, Koorokhee says that what is thus 
mentioned by Tehavee is the doctrine of 
Haneefa. That which is taken from the 
Mabsoot is the opinion of the two disciples : 
and the ground of it is that the regularity of 
divorce depends upon the intervention of a 
complete menstrual discharge between every 
two sentences ; and the first of these is defec- 
tive, on account of divorce having been pro- 
nounced in the middle of it, so that as part 
had previously elapsed, whence it would ap- 
pear necessary to complete it from the next 
following return ; but it is not lawful to have 
regard to one part only of the courses, and 
not to the other ; consequently, regard must 
be had to the next returning courses in toto. 
The ground of Tehavee' s opinion is that 
the divorce, with its effects, having been 
annulled entirely by the reversal, it is the 
same as if no divorce whatever had taken 
place during the woman's courses ; and hence 
it is perfectly regular to pronounce divorce 
in the Tohr next immediately succeeding. 

IF a man were to address his wife, saying, 
"You are divorced thrice, according to the Son- 
na,*' and he have no particular intention in 
so doing, then supposing the wife to, be one 
with whom he has had carnal connexion, and 
also subject to the courses, she becomes o$ice 
divorced in that and each of the two succeed- 
ing wohrs : and if the husband intended in so 
saying, either that threa divorces should take 
place collectively upon the instant, or, that 
a single divorce should take effect at the end 
of each succeeding month, the divorce, in 
each instance, takes effect according to his 
intention, whether she be in her courses or 
her Tohr at the period of its thus taking 
effect upon her. And if she be one whose 
Edit is calculated by months (such as a 
woman, for instance, whose courses are stopt 
through age), and the husband have no par- 
ticular intention in thus addressing her, in 
this case a single divorce takes effect upon the 
instant, another at the expiration of a month, 
and a third at the expiration of the next suc- 
ceeding month : because the term of a month 
corresponds, in such an one, with the Tohr 
of a woman who is subj^t to the courses, as 
was formerly observed ; or if he intended 
that three divorces should take place collec- 
tively upon the instant, the three take place 
accordingly, in the manner already stated. 



But if the husband were only to say, "You 
are divorced according to the Sonna," comit- 
ting the word "thrice," in this case the 
intention of three divorces collectively is not 
efficient. The proofs and arguments upon 
this passage are all drawn from the Arabic, 
and derive their weight from certain peculi- 
arities in that idiom. 

Section 

Of the persons who are competent to t?ro- 
nounce divorce THE divorce of every hus- 
band is effective, if he be of sound under- 
standing, and mature age ; but tnat of a boy, 
or a lunatic or one talking in his sleep, is 
not effective, for two reasons : FIEST, be- 
cause the Prophet has said "Every divorce 
is lawful, excepting that of a boy or a 
lunatic /'SECONDLY, because a man' 3 com- 
petency to act depends upon his possession 
of a sound judgment, which is not the case 
with infants, or lunatics : and one talking 
in his sleep is the same, in this point, as a 
boy or a lunaeic, since his words in this case 
are not the result of a deliberate option. 

A divorce pronounced by compulsion, ts 
effective THE divorce of one acting upon 
compulsion, from threats, is effective, accord- 
ing to our doctors. Shafei maintains that it 
is not effective, because a person who is com- 
pelled has no option, and no formal act of 
law is worthy of regard unless it be purely 
optional ; contrary to the case of a jester, 
who in mentioning divorce, acts from option 
which is the cause of its validity. Our 
doctors, on the other hand, allege that the 
person here mentioned pronounces divorce 
under circumstances of complete competency 
f maturity of age and sanity of intellect], the 
result of which is that divorce takes effect 
equally with that of a person uncompelled 
for with him necessity* is the reason of its 
efficiency ; and the same reason applies to the 
divorce of a compelled person, as he is also 
under necessity of divorce, in order that he 
may be released from the apprehension of 
that with with which he was threatened by the 
compeller. The foundation of this is that 
the man alluded to has the choice of two 
evils ; one, the thing with which he is 
threatened or compelled ; and the other, 
divorce upon compulsion ; and viewing botri, 
he makes choice of that which appears to him 
the easiest, namely, divorce ; and this proves 
that he has an option, though he be not 
desirous that its effect should be established, 
or, in other words, that divorce should take 
place upon it ; nor does this circumstance 
forbid tha efficiency of his sentence : as in 
the case of a jester ; that is to say, if a man 
pronounce a divorce in jest, it takes effect, 
although he be not desirous that it should; 
and so likewise the divorce of one who is 
compiled. 



*Namely, the necessity of separation from 
a wife, who may be odious or disagreable- 
to him. 



76 



DIVORCE. 



[VOL. I. 



Or in a state of inebriety, is valid. It a 
man pronounce a divorce whilst he is in a 
state of inebriety from drinking any fer- 
mented liquor, such as wine, the divorce 
takes place. Koorokhee and Tehavee hold 
that divorce ought not to take place in this 
case ; and there is also an opinion record id 
fromShafei to the same effect. The argu- 
ment upon which they maintain this doctrine 
is that reality of intention is connected with 
the exercise of reason, which is suspended 
during intoxication from wine ; in the same 
manner as where a person has taken any 
allowed but inebriating medicine, such as 
laudanum, in which case a divorce pro- 
nounced would not take effect, and so in this 
case also. But to this our doctors reply tint, 
in the case now under consideration, the 
suspension of reason beinq occasioned by an 
offence, the reason of the speaker is supposed 
still to remain, whence it is that his sentence 
of divorce effect, in order to deter him 
from drinking fermented .liquors, which are 
prohibited. But yet if a man were to drink 
wine to so great a degree as to produce a 
delirium or inflammation of the brain, 
thereby suspending his reason, and h in 
that situation pronounce divorce, it will not 
take effect. 

And so also that of a dumb person. THE 
divorce of a dumb person is effectual, if it 
be expressed by positive and intelligible 
signs, because signs of the dumb are autho- 
rized by custom, and are therefore admitted 
to stand in the place of speech, in the pre- 
sent instance in order to answer the necessity 
of him who makes them. The various species 
of signs used bv the dumb in divorce shall be 
set forth hereafter. 

Number of divorces in respect to free 
women and slaves. THE utmost number of 
divorces, with respect to a female slave, is 
two, whether her husband be a slave or free : 
and the same . with respect to a free woman 
is three. Shafei has said that, in the number 
of divorces, respect is to be had to the state 
of the man ; that is to say, if the husband be 
free he is empowered to pronounce three 
divorces, although his wife be a slave ; 
whereas, if he be a slave, he is not authorized 
to give morr than two divorces, although his 
wife should be a free woman, the Prophet 
having said **In divorce the state of the 
HUSBAND is to be regarded, and in the EDIT 
that of the WIFE :" moreover, personal con- 
sequence is an essential circumstance in all 
points of authority, and that appertains to a 
freeman in a higher degree than to a slave, 
whence his authority, is most extensive. The 
arguments of our doctors are twofold upon 
this topic ; FIRST, a precept of the Prophet, 
declaring, "The divorce of a female slave 
ire TWO, and her EDIT is TWO courses ; 
SECONDLY, it is the woman who is the subject 
of legality, and thie legality entitles her to 
benefits ; but slavery entitles only to half 
of these benefits ; hence it follows that the 
divorce of a female slave should not exceed 
one and a half, but such subdivision of it 



being impossible, her divorces extend to two 
As to the saying of the Prophet quoted by 
Shafei, that "in divorce the state of the 
husbanH is to be regarded," it means no 
more than that the effciency to divorce 
proceeds from him. 

A master cannot divorce the wife of his 
slave. THE divorce of a slave upon his wife 
takes place ; but that of a master upon the 
wife of his slave is of no effect, because the 
matrimonial propriety bein:? a right of the 
slave, the relinquishmeut of it rests with the 
slave, not with his master. 



CHAPTER II. 

OP THE EXECUTION OF PIVORCE. 

Distinctions. -DIVORCE (in respect to the 
execution of it) is of two kinds ; Sarcch or 
express, and Kinayat, or by implication : 
and first of express divorce. 

The manner of express divorce TALAK 
SAREEII, or express divorce, is where a hus- 
band delivers the sentence in direct and 
simple terms, as if he were to say, "I have 
divorced you," or "you are divorcen" which 
effects a Talak Rijai, or divorce reversible, 
that is to say, a divorce such as leaves it in 
the husband's power lawfully to take back 
his wife at any time before th- expiration of 
the Edit : and these forms are termed Sareeh, 
or express, as not being used in any sense 
but divorce ; and it appears in the sacred 
writings that reversal after an express divorce 
is lawful. The intention is not a condition 
of divorce taking place from these forms, for 
the same reason as was already assigned, to 
wit because they directly express divorce, 
as not being used in any other seme And 
it is to be observe d that a reversible divorce 
onl> is effected by these forms, although 
the intention of the husband be a complete 
divorce, because his intention is here to effect 
that upon the instant which the law suspends 
upon the lapse of the Edit, and is therefore 
unworthy of regard : and if his intention 
should be merely to express a delivery from 
bondage (which the term Talak is occasion- 
ally used to imply), and he make a declara- 
tion to this effect before the Kazee, it is not 
admitted, as it disagrees with his apparent 
design : but yet it is admitted before GOD, 
because he intended in those words a mean- 
ing which they are capable of bearing ; and 
if his intention be to express a release from 
bodily labours, his declaration to this effect 
is not at all admitted, either before the Kazee, 
or before GOD, as the word Talak does not 
bear the construction of release with respect 
to bodily labour, although it may occasion- 
ally bear that construction with respect to 
bondage : and it is also to be remarked that 
no mofe than a single divorce can be effected 
by these forms, although the intention be 
more. Shafei alleges that divorce takes 
place according to whatever the intentio 



BOOK IV. CHAP II ] 



DIVORCE. 



77 



may be -The proof s on each *ide arc drawn 
from the Arabic. 

Different formulas of express divorce. IF 
a man say to his wife, "You are [under] 
divorce," or "You are divorced by divorce," 
or, "You are divorced according to divorce,*" 
without any particular intention, or intend- 
ing thereby one divorce, or two divorces, a 
single divorce reversible takes place ; and if 
his intention be three divorces a triple 
divo-ce takes place accordingly The proofs 
are drawn on this occasion from the Arabic. 

IF a man were to say to his wife (as above), 
"You are divorced by divorcement," and 
declare that by the word "divorced" he 
meant one divorce, and by the word "divorce- 
ment" a second divorce, his declaration is 
credited, because each of these words are 
capable of being construed into an intention 
of effecting divorce, and hence two reversi- 
ble divorces take place, provided the woman 
has been enjoyed by him. 

IF a man apply divorce to the whole woman, 
by saying (for instance), "You are divorced," 
in this case divorce takes place, on account 
of its application to its proper subject, namely, 
the woman, the relative "You" implying 
the woman's person in too ; and the rule is 
the same where he applies it to any parti- 
cular part or member, from which the whole 
person is necessarily understood, as if he 
were to say, "your neck," or "your trunk," 
or "your head," or "your body," or "your 
vulva," i s divorced," for by such words 
the whole person is implied, the terms trunk 
and body bearing that sense evidently, and 
the others in common use : and they more- 
over occur, both in the tradition, and also in 
the Koran ; and, according to one tradition, 
the term blood may also be used in the same 
sense. Divorce takes place also where it is 
applied to any general portion of the wife, 
as if the husband were to say to her, "your 
half," or "your third, is divorced;" because 
any general portion is a proper subject 01" all 
acts, such as sale, purchase, and so forth, and 
is therefore equally so of divorce ; but the 
subject in question (to wit, the woman) is 
incapable of division, and hence divorce is 
established upon her in too, and is not re- 
stricted to the portion mentioned. 

Divorce when applied to any specific part 
or member of the body such as does not (in 
common use) imply the whole per son t is of 
no effect. Ir the husband say to his wife, 
"your hand." or "your foot, is divorced," 
divorce does not take place. Ziffer and 
Shafei maintain that it does : and the same 
difference of opinion subsists where the 
divorce is applied to any other specific 
member, or organ such as does not imply 

* These and the succeeding forms of di- 
vorce, literally rendered, are most of them 
apparently unintelligible, or absurd; they 
are each, however, to be considered as having 
some peculiar force or effect, which it is im- 
possible to express, or to convey an i dea of, 
in translation. 



the whole person, as the ear or the nose, &c. 
The argument of Ziffer and Shafei is, that 
those members contribute to the matrimonial 
enjoyments, such as kissing, touching, and 
so forth, and whatever is of this description, 
as beine a subject of the laws of marriage, 
is a proper subject of divorce, and as such; 
when divorce is applied to it, it takes placs 
upon it, and consequenly extends to the 
whole psrson, in the same manner as where 
it is applied to any general portion such as 
an half, and so forth ; contrary to the appli- 
cation of marriage, to any specific member, 
such as the hand or the foot, in which case 
the marriage is not valid, because it is rot 
conceivable that legality should be estab- 
lished in that particular member, and extend, 
in consequince, to the whole person, as the 
illegality existing in the other members ex- 
ceeds the legality in that particular member, 
whereas, the reverse holds in divorce. To 
this our doctors reply, that a specific member, 
such as the hand or foot ; not being in itself a 
proper subject of divorce, the application of 
that too is null, the same as to a woman's 
spittle, or to her nails, the ground of which 
is that the subject of divorce must be some- 
thing upon which a bond or connexion may 
exist (as divorce implies the dissolution of a 
bond or connexion), and there is no bond 
upon the hand : for which reason it is that 
the application of marriage to that part is 
invalid ; contrary to a general portion of the 




proper 

subject of divorce also. There is "a similar 
difference of 'opinion where the divorce is 
applied to the belly or the back ; but it is 
evident that here divorce does not take place, 
as these parts are never used to imply the 
whole person. t t 

A partial divorce is complete in its effect. 
IF a man pronounce upon his wife an half 
divorce, one divorce takes place, because 
divorce is not capable of division, and the 
mention of any portion of a thing t of an in- 
divisible nature stands as a mention of the 
whole ; and the fourth, or fifth, or any other 
proportion of divorce, is analogous to the half, 
in what is now said, for the same reason. 

Equivocal. IF a husband say to his wife, 
"you are under three moieties I of two divor- 
ces " three divorces take place, because the 
half of two is one, and consequently three 
moieties of two divorces amount to three. 
And if he were to say, "you are under three 
moieties of one divorce," some are of opinion 
that two divorces take place, this amounting 
to one and a half ; but others allege that 
it produces three divorces, because every 
moiety, amounts to one complete divorce, on 
the principle already stated : various doctors 
agree in approving the former opinion. 

AndtndVntte/orm. T lFaman say to his 
wife, "you are under divorce, from one ;o 
two," or "between on and two,"' in this 
case one divorce takes place ; and if he were 
to say "from one to three/' or "between 



78 



DIVORCE. 



(VOL. I. 



one and three/' two divorces take place, 
This is the doctrine of Haneefa The two 
disciples assert that by the first form two 
divorces take place and by the last three 
Ziffer, on the other hand, maintains that by 
the first form no divorce takes place , and by 
the second one divorce only, this being con- 
formable to analogy, because the boundaries 
of a thing are not included in the contents ; 
as for example, where a man says, "1 have 
sold such a piece of ground, from this wall to 
that wall/' in which case neither wall is in- 
cluded in the sale. The ground of opinion 
of the two disciples is that, in such a mode 
of speaking, the whole is by custom under- 
stood, as for example, where one man says 
to another, "taki of my property, from one 
Oirm to a hundred/' which implies the whole 
hundred. "...The argument of Haneefa is that, 
in this indefinite mode of expression, no par- 
ticular number is implied, any more than 
where a man in discourse, says, "my age is 
from sixty to seventy years," or "between 
sixty and seventy/' by which he means some 
indefinite term between tl^se two : and in 
reply to the argument of the two disciples, it 
is sufficient to obseive that the whole is to be 
understood only where the expression relates 
to a thing of an indifferent nature, as in the 
instance cited by them ; but divorce is in 
itself a dangerous and disapproved pro- 
cedure ; and to what is advanced by Ziffer 
it may be answered, that it is necessary that 
the first boundary be in existence, so as that 
the second may bear a relation to it ; but in 
the present case the first boundary (to wit 
divorce), is not in being, nor can be so, unless 
by divorce taking place, which it accordingly 
does of this necessity : contrary to the case 
of sale, cited by Ziffer as apposite to this 
because there both boundaries (understood 
by the two walls) do actually exist previous 
to the sale. It is to be observed on this 
occasion, that if the husband, speaking in 
the second form, intend only a single divorce, 
it is admitted withGoo, as he may be allowed 
to intend whatever construction the words 
will bear, but it is not admitted with the 
magistrate as being contrary to apparent 
circumstances. 

IF a man say to his wife, "you are ivorced 
once by twice," intending the multiple or 
multiplied product thereof, or not having 
any particular intention, a single divorce 
reversible takes place. Ziffer says that two 
divorces take place, such being the number 
understood from this mode of speaking in 
arithmetic ; and this opinion is adopted by 
Hasn-Bin-Zeead. But if, in speaking as 
above, he intend to say, "you are divorced 
once and twice," three divorce* take place 
accordingly, because this way of speaking is 
capable of that construction, as the word fee 
[by] has also [in the Arabic] the sense of and : 
if, however, the woman be unenjoyed, no 
more than one divorce takes place, as in the 
casejwhere a man says to his unenjoyed wife, 
"you $ re divorced once and twice," but if 
he in fend to say, "you are divorced once 



with twice," three divorces take place, al- 
though she should be unenjoyed ; and if he 
mean to express himself in a sense which 
implies that the one is contained in the other 
as if he were to say, "you are divorced 
once in twice/' and divorce takes place, the 
superadded words in twice being held to be 
redundant, because divorce is incapable of 
bei g a container.* 

IF a husband say to his wife, "you are di- 
vorced twice by twice," intending the mul- 
tiple ; yet no more than two divorces cake 
place. With Ziffer thr?e divorces take place, 
because from this multiplying mode of ex- 
pression is to be understood four divorces, 
and three consequently take place, as being 
the greatest lawful number. 
Divorce with a reference to place. IF a man 
say to his wife, "you are divorced from this 
place to Syria." a single divorce reversible 
takes place. Ziffer says that it occasions a 
complete or irreversible divorce, because, 
where he thus gives the divorce a description 
of length, it is the same as if he were to say, 
"you are under a long divorce," and if he 
were to say so, a complete divorce would take 
place, and consequently the same in the pre- 
sent instance. Our doctors, on the other 
hand, allege that the sentence does not affix 
any description of length to the divorce, but 
rather the reverse, because when divorce 
takes effect in any one place it does so in all. 

IF a man were to say, "you are under di- 
vorce in Mecca," divorce takes place upon 
her immediately in every country ; and so 
also if he were to say, "you are divorced in 
this house," because divorce is not restricted 
to any particular place, and [if he were to 
intend, by thus speaking, that "she shall 
become divorced if over she should enter 
Mecca, or that house," his declaration to this 
effect is admitted with GOD but not with the 
Kawzee, as the tenor of his words apparently 
contradict this construction. 

IF a man say to his wife, "you are under 
divorce when you enter Mecca," in this 
case no divorce takes place until she enter 
Mecca, he having suspended the divorce upon 
that circumstance. And if he say, "you are 
divorced in entering the house," this means 
"if you enter the house," because the con- 
taining particle frequently stands expres- 
sive of a condition, and not being applicable 
here in its containing sense, it necessarily 
assumes the meaning of a condition. 

Section. 

Of Divorce with a Reference to Time. 
IF a man say so to his wife, "you are di- 
vorced this day to-morrow, or "you are 

*The words in the original are, "Ante 
Talikpon wahdetoon fee Sinnatinee," which 
is an indefinite or equivocal mode of expres- 
sion, as the word fee (amoni, various other 
senses) bears those of by, with, or and, as 
well as in, which accounts for the distinc- 
tion here made, and the latitude permitted. 



BOOK IV. CHAP. II.] 



DIVORCE 



79 



divorced to-morrow this day." in the first 
instance divorce takes place on the instant, 
and, in the second, on the baginning of the 
morrow ; and the second word is in both 
cases redundant ; because, whers he first 
says "this day," divorce takes phce imme- 
diately ou the present day, and consequently 
is not procrastinated to the rmrrotf, and, 
on the other hand, where the first says "to- 
morrow," the divorce is p-ocrastinated to the 
morrow, and does not take place immediately 
on the present day ; the second word is there- 
fore redundant in both cases. 

WHERE a man says to his wife, "vou are 
divorced to-morrow," the divorc-: takes place 
on the dawn of the ncxl morning ; and if he 
should intend by the word "to-morrow" the 
end of the morrow, it is so admitted with 
GOD, but not with the Kazee, because this 
contradicts appearances : but if he were to 
say, "you are divorced in to-morrow," de- 
claring his int ntion therein to be "at the 
end of the morrow," it is admitted with the 
Kazee, according to Hane fa, The two dis- 
ciples say that it is not admitted with the 
Kazee, although it be so with GOD, because 
the words to morrow and in to-morrow are 
one an'} the same thing, as the word to- 
morrow is mentioned in an inclusive sense* 
in both cas s, whence it is that, from the ex- 
pression "to-morrow," divorce takes place 
on the first instance of the ensuing day, where 
the husband has no particular intention. 
The argument of Haneefa on this subject is 
that the husband may be allowed to have in- 
tended some such meaning from his expres- 
sion, because the word in is introduced as a 
Zirf; or particle of containance, which does 
not require that the whole of the container 
should be understood from it ; and the reason 
why divorce takes place, in the present in- 
gtance, from the beginning of the ensuing 
day, where the husband had no particular 
intention, is, that as nothing appears to the 
contrary, its commencement is necessarily 
determined to that period ; and regard being 
thus had to necessity in the determination 
of it, follows that if that speaker fix it at 
the end of the day, this determination must 
be regarded, a fortiori : contrary to his say- 
ing, "you are under divorce to-morrow," 
(omitting the word in), in which case, if he 
should have intended the end of to-morrow 
his declaration to that effect is not admitted 
with the Kazee, because the word to-morrow, 
without in, occasions the woman to fall under 
the description of being divorced for the 
whole of to-morrow, which cannot be effected 
but by the divorce taking place upon her in 
the beginning of the day : and consequently 
the end of the day, in this case, contra- 
dicts appearances. 

IF a man say to his wife, "you are under 
divorce yesterday/' and it should so be that 



This is an Aratftc mode of expression, 
implying no more than that here the particle 
in is understood. 



he was married as this day, 'divorce doss not 
take place at all, because he has here re- 
ferred divorce to a period in which he was 
not competent to pronounce it, and therefore 
his divorce is nugatory, the same as it he 
were to say "you are under divorce before 
my existence" But, in the present case, if 
he had married her before the time of which 
he speaks, divorce takes place at the time of 
his speaking ; because, if a .man signify a 
divorce in the preterite form, it is an indica- 
tion in the present, and hence the divorce 
takes place accordingly, this expression 
beine an indication of what is new, and not 
a relation of what is past, as it docs not 
appear that he pronounced any divorce 
yesterday, so as that he should now give 
intelligence thereof.* 

TK a man say to his wife, "yau are under 
divorce previous to your marriage with me, 
divorce does not take place, because he 
applies the divorce to a period which for- 
bids it, the same as if he were to say, "you 
are under divorce in my infancy, or in 



man say to his wife, "you are under 
divorce upon my not divorcing you, or 
-when I do not divorce you, and then re- 
main silent, divorce takes place, because he 
has here applied it to a time which ^ appears 
the moment he ceases to speak.-l*ut, ifhe 
were to say, " you are under divorce if I do 
not divorce you," divorce does not take 
mice until near the period of his decease, 
because here the condition does not become 
established until life be despaired of. 

IF a man say to his wife, "you are under 
divorce, whilst I do not divorce you, you 
arc i divorced,'*!" she becomes divorced on 
account of the last repudiation, to wit, "you 
ared^vorced."-Thisis where the last words 
of the sentence are uninterruptedly connected 
with the Virst part of it, and proceeds upon a 
Swurable construction, for analogy would 
suggest that the first, divorce takes place also 
(to wit, "you are divorced whilst I do not 
divorce you") and thus both divorce would 
take place, provided the woman be enjoyed; 
and such is the opinion of Ziffer ; but the 
reason for the more favourable construction 
hire is that it is the intention of the vower 
^ fulfilhrs vow, in such a manner that he 
may not be forsworn, which is impossible m 
the present case, unless that portion of time 
which may enable him to pronounce the 




The reasoning here turns solely upon 



. 

creative sence. 



book 



law, in a 

Ch t P This is one of the forms under which 

divorce by vow is conceived. 



80 



DIVORCE. 



[Vot. I- 



correspondent to this occur in the Book of 
Eiman. 

IF a man say to a strange woman, "you 
are under divorce the day upon which I 
marry you," and he afterwards marry her in 
the night, she is divorced ; because by day 
is sometime meant the day time, and this 
sense alone it bears where it relates to a 
matter, of continuance (such as fasting, for 
instance), and sometimes it is meant to ex- 
press time in general, which sense it bears 
where it relates to a transient or momentary 
transaction and of this nature is the act of 
divorce ; and consequently by the word day 
in the present case, is to be understood time 
generally, applying equally to day and night 
both Hut if the husband were to say that 
by day he meant the daytime, and not time 
generally, his declaration is admitted with 
the Kazee, as he may be allowed to have in- 
tended that constriction which is applicable 
to the word day, since, according to custom, 
day applies to the daylight, and night to 
darkness. 

Section. 

IF a husband say to his wife, "I am 
divorced from you," by this nothing is estab- 
lished, although divorce be the intention : 
but if he were to say, "I am separated from 
YOU." or"I am prohibited to you,"intend- 
ing divorce, becomes divorced. Shafei 
holds that divorce takes place in the former 
instance also, where such is the intention 
because the matrimonial right of possession 
is equally participated by the husband and 
the wife insomuch that the latter is entitled 
to demand coition of the former, and the 
former to demand admission to coition from 
the latter, and the legality of the carnal en- 
joyment also appertains equally to both ; 
and divorce being used for the purpose of 
dissolving the right, and the legality, the 
application of it to the husband holds good, 
an well as to the wife, and consequently 
divorce takes place under the first of the 
above froms, as well as under the second or 
third. The argument of our doctors is that 
divorce is used for the removal of restraint 
and this is found in the woman, but not in 
the man (whence it is that a married woman 
cannot go out of the house) ; and admitting 
that divorce were used for the purpose of 
dissolving the matrimonial right of posses- 
sion (as advanced by Shafei, it may be re- 
plied that the husband is the possessor of 
the wife and the wife possessed of the hus- 
band [whence the woman is called the mar- 
ried, and the man the marrier), and conse- 
quently possession applies to woman ; 
contrary to separation or prohibition, the 
first of these being a total dissolution of 
connexion, and the second of legality, both 
of which equally appertain to each of the 
parties : and hence the application of them 
to either is equally forcible, whereas that of 
divorce is of no force except when applied 
to the wife. 

IF a man say to his wife, "you are 



divorced once or not," divorce does not take 
place. The compiler of the Hedaya observes 
that the same is said in the Jama-Sagheer ; 
nor is any difference of opinion recorded 
there. This is what is said by Haneefa, and 
in one place by Aboo Yoosaf. According to 
Mohammed (with whom Aboo Yoosaf in 
another place coincides) a single divorce re- 
versible takes place; and in the book of 
divorce in the Mobsoot it is recorded that, 
where the husband says to his wife, "you 
are divorced once or nothing" a single 
divorce reversible takes place, according to 
Mohammed ; now between this and the pre- 
ceding form there is no sort of difference, 
and consequently, if the case cited in the 
Jama-Sagheer be the opinion of all the doc- 
tors, it follows that there are two opinions 
recorded from Mohammed upon the point, 
The argument of the latter is that the 
number is rendered dubious on account of 
the particle of doubt "or" intervening 
between the word "once" and the negative 
"not," wherefore regard to the former drops, 
and his words remain;"you are divorced:" 
contrary to a case where he says, "you are 
divorced or not," in which instance divorce 
does not take place, since in this last case 
the doubt exists with respect to divorce it- 
self. The arguments of Haneefa are drawn 
from the Arabic idiom. 

IF a man say to his wife, "you are divorced 
after my death," or "after your death ; "no 
consequence whatever ensues from this 
expression, because, in the first instance, he 
has applied the divorce to a time which for- 
bids it, since a husband is not competent to 
the execution of divorce after death ; and, 
in the second, the woman no longer remains 
a fit subject of it ; and both these circum- 
stances are essential to a legal divorce. 

Separation takes place upon either party 
becoming possessed of the other as a slave 
IF a husband become the proprietor of his 
wife [as a .slave] either wholly or in part, or 
a wife the proprietor of her husband, sepa- 
ration takes place between them, possession 
by bondage and possession by matrimony 
being irreconcilable ; in the latter instance, 
because, if separation were not to take place, 
it would follow that the wife is at once the 
possessor and the possessed (she falling 
under the latter description by virtue of 
marriage) : and, in the fomer instance, 
because possession by matrimony is estab- 
lished of necessity, and when the husband 
becomes actual possessor of his wife's per- 
son, this necessity ceases, and consequently 
possession by matrimony also. 

Or upon a husband purchasing his wife. 
IF a man purchase his own wife [as a 
slave], and afterwards divorce her, divorce 
does not take place, because without the con- 
tinuance of marriage it cannot exist, and in 
the present case the marriage has ceased in 
every shape whatever, since it does not con- 
tinue even with respect 10 Edit ; and in the 
same manner, when a wife becomes possessor 
of her husband, either wholly or in part, if 



BOOK IV.-CHAP. II] 



DIVORCE. 



81 



the latter were to divorce her, his divorce does 
not take effect, because in this case also the 
marriage has ceased, for the resons before 
assigned Mohammad says that in the latter 
case divorce holds good, because the woman 
is enjoined an Edit, and hence the marriage 
continues in one shape : contrary to a case 
where the husband purchases his wife, for 
then the marriage totally ceases, because she 
is not under any obligation of Edit with 
respect to her husband, who is now her pro- 
prietor, and has a right to continue carnal 
cohabitation with her in that capacity. 

The divorce of a wife (being a slave) when 
suspended upon the emancipation of her 
owner, takes place upon the occurrence of that 
condition IF a man marry the female slave 
of another, and say to her, "you are divorced 
twice upon the manumission of your owner," 
and her owner afterwards emancipate her, 
the divorce takes place ; but it is still in the 
husband's power to reverse it, because he 
has suspended the divorce upon the manu- 
mission of the master, and that is the con- 
dition of it (as a condition is a thing not 
existing at present, but the occurrence of 
which is probable, and this case actually 
takes place on manumission, wherefore that 
is the condition, and divorce is suspended 
upon it) ; and divorce taking place after the 
occurrence of the condition, it follows that 
it takes place upon her as a free woman, and 
hence she is not, by two divorces, rendered 
prohibited* by a rigorous prohibition. 

IF the person in question were to say to 
the female slave, his wife, "when to-morrow 
arrives you are free," in this case it is not 
lawful for the husband to marry her again, 
until such time as she has been married to 
another man, and repudiated by him, and 
her Edit (which is three terms of her courses) 
has elapsed. This is the doctrine of the two 
Elders. Mohammed says that the husband 
is at liberty to reverse the divorce, since the 
execution of the divorce is connected with 
the master's manumission, because the nus- 
band has suspended his repudiation*upon 
the same circumstance on which the master 
has suspended his manumission ; hence the 
repudiation is (as it were) associated with 
the emancipation ; and freedom being also 
associated with the emancipation, it follows 
that the execution of divorce is, of course, 
associated with freedom, and the divorce 
takes place upon the slave after freedom 
(whence it is that the Edit of the woman 
here treated of is fixed at three terms of her 
courses, whereas if she were a slave, her 
Edit would be two terms only), and such 
being the case, reversal is approved, in this, 
as well as in the preceding example. The 



Three divorces being the utmost num- 
ber to a free woman, and two to a slave, it 
follows that if two Divorces take place upon 
a woman as a slave, becomes irreversibly 
divorced. (See Chap. I). 



argument of the two Elders is that the hus- 
band has suspended divorce on the some cir- 
cumstance upon which the master has sus- 
pended freedom ; and as that takes place 
upon the woman whilst she is yet a slave, so 
does divorce likewise ; now the slave becomes 
forbidden [in marriage to her husband], in 
consequence of two divorces, by the rigorous 
prohibition, wherefore reversal is not ap- 
proved ; nor does it become lawful to him to 
marry her till such time as she shall have 
been possessed by another husband ; but this 
reason does not apply to the Edit, since that 
is a matter of caution, which is evident from 
fixing its duration to three terms of the 
courses, so that the complete fulfilment of it 
may be indubitable : and with respect to 
what Mohammed says, that, "as repudiation 
is connected with freedom, divorce takes 
place after freedom," it is of no weight, be- 
cause, if freedom be connected with manu- 
mission, on account of the one being the 
cause of the other, and if the repudiation 
and manumission be associated together in 
such a manner that repudiation and freedom 
must take place at the same time, we reply 
that divorce is also associated with repudia- 
tion, on account of the latter being the cause 
of the former; whence it follows, that free- 
dom is associated with divorce, and not that 
divorce takes place subsequent to freedom. 

Section. 

Of Divorce by Comparison and the 
several descriptions of it. 

The number of divorces may be determined 
by signs made with the fingers. IF a man 
say to his wife, "you are under divorce 
thus," holding up his thumb and fore and 
middle finger, three divorces take place, be- 
cause from the holding up of the fingers 
number is customarily understood, where 
the sign is associated with a relative to 
number ; and the word "thus" is of this 
kind ; and the fingers held up are three in 
number , whence three divorces are to be 
understood : and if the sign be given with 
one finger, a single divorce takes place ; if 
with two fingers, two divorces. It is to be 
observed thas the sign is to be understood 
from the fingers which are extended, and 
not from those which are clenched. Some 
of our modern doctors, however say that, if 
it be made with the back of the fingers, it is 
understood from those which are clenched. 
And if the divorcer were to say, "I have 
given the signal with the two clenched 
fingers," whilst at the same time he had 
actually given it with the extended fingers, 
his declaration V credited with GOD, but not 
with the Kazee ; and so also where he says, 
"I have intended the signal by the palm of 
my hand, and not by the fingers ;" insomucH 
that two divorces take place [in the first in- 
stance, and one in the last, in a religious 
view ; because signs are made with the shu 
fingers, or the palm of the hand, as.well as 
with the extended fingers, and hence he may 
be allowed to have intended to express the 



82 



DIVORCE. 



[VOL. I. 



number of divorce by signs capable of that 
construction : but it contradicts appearance?. 

But not unless t to be expressed with a rela- 
tion to number. AND in the ca^-e now under 
consideration, if the word "thus" be omit- 
ted, and the sign be made with the th^mb 
and fore and middle finger, vet one divorce 
only takes place, because the sien is not 
associated with the relative, and hence the 
words only remain, to wit, "you are divorced" 
from which one divorce onlv results. 

Divorce pronounced with an expression nf 
vehemence is irreversible in it* effect. Ira 
man give to the divorce which he is pro- 
nouncing a description of particular vehe- 
mence or amplification, as if he were to say, 
"you are divorced irreversibly " or "you 
are divorced to a certaintv," an irreversible 
divorce takes place, whether the wife whom 
he so addresses may have been enjoyed or 
not Shafei says that the divorce is rever- 
sible where she has bren en joyed, because 
reversal during ^Eclit, after divorce from a 
wife already enjoyed, is sanctioned by the 
precepts of the law, and brinqincr it under 
the description of irreversibilitv is c-mtrary 
to them ; thus a husband is not at liberty to 
pronounce, upon an uncnjoyed wife a divorce 
irreversible ; the word "irreversibly," there- 
fore, is nugatory on this occasion, a* much 
as if he were to say, "you are divorced, with 
this condition, that no right of reversal re- 
mains to me." The argument of our doctors 
on this point is, that the man has pronounced 
the divorce under a description which it is 
capable of bearing because divorce takes 
place irreversibly upon a wife unen joyed (and 
also upon any 'other, at the expiration of the 
Edit) ; and such being the case, the divorce 
takes place in this case irreversibly upon an 
enjoyed wife, the same as upon one unenj ved, 
the husband having, by his description, 
specified a circumstance which is really 
applicable to divorce. And with respect to the 
case of rcveri il b^ing mentioned as an addi- 
tional condition (as cited bv Shafei in sun- 
port of his doctrine), it is not admitted ; 
because theu also a divorce irreversible takes 
place, where it is pronounced either without 
intention, or with the intention, of two di- 
vorces ; but where three divorces are in- 
tended, that number must take place, as 
irreversibility bears the construction of three 
divorces. 

IF a man say to his wife, "you are divorced 
irreversible/' or "you are divorced to a 
certainty f and intend by his words "you 
are divorced," to express one divorce, and by 
the additional words "irreversibly," or "to 
a certainty," another divorce, two divorces 
irreversible take place, as these expressions 
are of themselves capable of effecting divorce. 

IF a husband say to his wife, "you are 
under a most enormous divorce." a divorce 
irreversible takes place, because divorce is 
ctthus described only with a view to its effect 
in the immediate dissolution of the marriage 
and hence the description of it by enormity 
is the same as by irreversibility. And it is 



the same if he were to say, "a most base 
divorce," or "the worst kind of divorce; 
and so also if he were to say, * a diabolical 
divorce, or "an irregular divorce ;" because 
reversible divorce is restricted to those of the 
regular description [or Talak-al-Sonna], and 
consequently all others are of an irreversible 
natu r e. It is recorded as an opinion of Aboo 
Yoosaf, that, where the husband says "an 
irregular divorce," a divorce irreversible 
does not follow, unless such be the intention, 
because irregularity [BidJat] in divorce is of 
two kinds, one originating in the circum- 
stance under which divorce is executed (as 
where it is pronounced upon the wife during 
her courses), the other, in the nature of the 
sentence fas where the husband pronounces 
the divorce irreversible in direct terms), and 
hence it is indispensably requisite that the 
intention be regarded It is also recorded 
as an opinion of Mohammed, that from the 
use of the descriptions irregular or diabo- 
lical, a divorce reversible takes place, any 
divorce may be thus described, not with a 
view to irreversibility, but merely to the irre- 
gularity of the circumstances under which 
it is pronounced (as where it is pronounced 
upon the woman during her courses), and 
hence the divorce is not irreversible, unless 
such be the intention, 

IF a man say to his wife, "you are under a 
divorce like a mountain," a divorce irrever- 
sible takes place, according to Haneefa and 
Mohammed Aboo Yoosaf holds that the 
divorce is reversible, because a mountain is 
a single thing, and hence the comparison 
of divorce with a mountain gives the former 
a descripition of unity. The argument of 
the other two sages is, that sirmle, in divorce, 
is always used in an amplifying sense ; and 
amplification implies irreversibility ; whence 
a divorce irreversible is the effect. 

IF a man say to his wife, "you are under 
a most vehement divorce," or "you are 
divorced like a thousand," or "a houseful, 
one divorce irreversible takes place, unless his 
intention be three divorces, in which case 
three take place accordingly. The divorce 
is irreversible from the first of these forms, 
because it is there mentioned under a de- 
scription of vehemence which occasions irre- 
versibility, as applying something in its 
nature decisive, and incapable of recall, 
whereas, divorce reversible is capable of re- 
call, and therefore the description of vehe- 
ment does not apply to it ; and it is irre- 
versible from the second form, because this 
simile sometimes expresses force, and some- 
times number (as it is said, for instance, that 
such a man is like a thousand, by which it 
is to be understood that he is possessed of 
uncommon strength), and hence the inten- 
tion applies with equal propriety to either 
sense ; and where no intention exists, the 
least extensive meaning of the two is adopted, 
to wit, one divorce irre/ersible ; and|rom 
the third form, because a house may be filled 
either by the magnitude of its contents, or 
by the number, and hence the intention ap- 



BOOK IV. CHAP. II. ] 



DIVORCE. 



83 



plies with equal propriety to either circum- 
stance ; and where no intention exists the 
least extensive sense is adopted, as above. 

Divorces when pronounced with a simile, 
is almays irreversible. IT is a rule, with 
Haneefa, that whenever divorce is thus 
pronounced with a simile, it produces a 
divorce irreversible,- whatever the thing 
may be with which it is compared, and 
whether the magnitude of thit thing be 
mentioned or not ; it having been before 
remarked the simile in divorce is al vays 
used in an amplifying sense ; and amplifica- 
tion implies irrewrsibihty Aboo Yoosaf, 
on the other hand, holds, that if the magni- 
tude of the subject of simile b> mentioned, 
the divorce is irreversible, but not otherwise, 
whatever that may be, because a simile may 
sometimes be introduced merely to express 
unity ; wherefore indefinte comparison is 
not to be taken in an amplifying sense ; but 
where the magnitude is mentioned that un- 
doubtedly is to be construed amplification ; 
and hence irreversibility is established. 
Again, Ziffer maintains that if the subject 
of simile be of such a nature as conveys an 
idea of magnitude, the divorce is it rever- 
sible, but otherwise not. Some commenta- 
tors allege that Mohimmed coincides with 
Haneefa on this point ; others, thit he agrees 
with Atno Yoosaf. The nature of these 
diversities of opinion is exemplified in a 
case where a man says to his wife, " you are 
under a divorce like a needle," or "like 
the size of a needle's eye," or "like a moun- 
tain/' or "like the size of a mountain ;" 
for under the first of these forms the divorce 
is held to bz irreversible by Hmeefa alone : 
under the sec md it is so with Haneefa and 
Aboo Yoosaf, and not with Ziffer ; and under 
the third it is so with Haneefa and Ziffer, and 
not with Aboo Yoosaf ; but under the fourth 
form it is irreversible with them all. 

IP a man say to his wife, "you are repu- 
diated by a heavy divorce," or "by a broad," 
or "by a long divorce," one divorce irrever- 
sible takes place ; because a thing of which 
the reparation is impraticable is called 
heavy, and an irreversible divorce is of this 
kind, inasmuch as the reparation of it is 
difficult ; and with respect to those things of 
which the reparation is difficult, it is com- 
mon to say, "they are long and broad" It 
is recorded from Aboo Yoosaf that the divorce 
thus occasioned is reversible, because the 
descriptions of difficulty, length or breadth, 
do not apply to divorce, and are therefore 
nugatory. And if the man should, by any of 
these sentences, intend three divorces, it is 
approved because separation is divided into 
two kinds, the light and heavy, so that when 
the heavy (which is three divorces) in parti- 
cularly specified, it is held to be efficient. 

Section. 

Of Divorce before Cohabitation.* 
Three divorces take place upon an unen- 



Divorce pronounced upon a woman be- 
fore cohabitation is in all cases complete and 



joyed wife when they are pronounced together, 
but only the first when they are pronounced 
separately. WHEN a man divorces a woman 
before cohabitation, by saying to her, "you 
are divorced thrice," three divorces take 
place upon her, because he has here given 
three collectively ; but if he pronounce the 
three separarely, saying, "you are divorced, 
divorced, divorced," one divorc* irrever- 
sible takes place from the first, but nothing 
from the second or third, because each repe- 
tition of the word "divorce" is a separate 
execution of divorce ; and the first of them 
having already rendered the woman deci- 
sively and irreversibly divorced, it foil ws 
that the second and third cannot take effect 
upon her. And it is the same where he says, 
"you are divorced once and again" (where 
a single divorce takes place), because the 
woman becomes completely divorced by the 
first part of the sentence. 

IF a man say to his unenjoyed wife, "you 
are divorced once," and the woman should 
happen to die before the word "once" be 
pronounced, in this case divorce does not 
take place, because he has here associated 
the number with the divorce, which conse- 
quently ought to take place accordingly ; but 
the woman dying before the number is men- 
tioned, no subject of divorce remains at the 
time when it should take place, and hence 
the execution of it is null ; and so also, 
where he says, "you are divorced twice" 
or "thrice." . . it 

IF a man say to his unenjoyed wife, you 
are divorced once before once," or once, 
and, after that, again," a single divorce 
takes place ; tut if he were to say, "you are 
divorced once, and previous thereto once," 
two divorces take place ; and so also if he 
were to say, "you are divorced once after 
once." The proofs are all drawn, in this 
case, from the Arabic idiom. And if the 
man say, "you are divorced once with 
once," or "once along with once," two di- 
vorces take place, because of the associating 
particle with, which makes the lentence 
appear as of two divorces collectively. Aboo 
Yoosaf says that, under the second form, 
one divorce only takes place ; his proof is 
drawn from the Arabic idiom. In all these 
instances it is to be remarked, that two di- 
vorces would take place upon an enjoyed wife. 

IF a man say to his unenjoyed wife, it 
you enter the house you are divorced once 
and again," and she afterwards enter the 
house, a single divorce only takes place upon 
her, according to Haneefa. The two dis- 
ciples say that two divorces take place, out 
if he were to say, "you are divorced once 
and again, if you enter the house, and sn 
afterwards enter it, two divorces take place 
upon her, according to all. And it he de- 
clare the same sentence, with a variation m 
the construction of it, thus, "you are di- 

iTTeveTiible. An attention to this rule is 
necessary to the understanding of several 
cases in this section, 



84 



DIVORCE. 



[VOL. I. 



vorced once, and again if you enter the 
house," Koorokhee has said that here also 
there is a difference of opinion, one divorce 
only taking place with Haneefa, and two 
with the two disciples. Abpo Lays, however, 
observes that here one divorce only takes 
place, according to all the doctors, as under 
this construction the last member of the sen- 
tence is utterly distinct and separate from 
the first, and this is approved. m 

In implied divorce. THE second kind ot 
divorce, namely Talak-Kinayat, or divorce 
by implication, is where a man repudiates 
his wife (not in express terms), but by the 
mention of something from which divorce 
is understood ; and divorce does not take 
place from this but intention or circum- 
stantial proof, because the implication is 
not used to express divorce alone, since it 
may mean divorce, and also something else, 
and hence intention or circumstantial proof 
are requisite to determine the construction 
in which it is to be taken. 

In implied divorce are three forms which 
effect a reversible divorce. THE compiler of 
the Hedaya observes that implication is of two 
kinds. The FIRST is that form which a single 
divorce reversible takes place ; and this con- 
sists of three forms of words, to wit, 
"Count 1" "Seek the purification of your 
womb I" -"You are single 1" of the FIRST, 
because to count means enumeration, and 
hence the word "count 1" bears two con- 
structions, one, "count 1" (the courses that 
are incumbent upon you)," and the other, 
"count 1 (the blessings of Almighty God) ;" 
and if the speaker intend the r former mean- 
ing divorce is the ascertained construction 
of the word, in virtue of such his intention ; 
and here the divorce takes place, of neces- 
sity, from his having desired her to count 
her courses, which other is of no force except 
where he has divorced her. because previous 
to the divorce, the counting of her courses 
was not incumbent upon her. and hence it is 
the same as if he had said, "vou are di- 
vorced, and count !" And as this necessity 
is sufficiently answered by a reversible di- 
vorce, a reversible divorce accordingly takes 
place. And of the SECOND, because "seek 
the purification of your womb I" may either 
mean, "see that your womb be free from 
progeny, in order to your getting another 
husband" (since this expressly applies to 
the same thing as is designed by the pre- 
ceding word "count," and therefore may, 
in the present case, stand intsead of it), or 
it may mean, "see that your womb be free 
from progeny, in order that* I may divorce 
you ; and where the husband intends the 
former meaning , a divorce reversible takes 
place, tht same as in the preceding case. 
And of thcTniRD, because "you are single I" 
may either mean, * 'you are repudiated by a 
single divorce" (and where such is the in- 
dention^ a single divorce reversible takes 
place, as by this form such a divorce is 
effected), or it may mean, "you are single 



are single (among women, in beauty, and 
so forth "). Thus, these words bearing a 
variety of constructions, intention is essen- 
tially requisite to their effect ; and it is to 
be observed that those forms occasion no more 
than a single divorce, because such forms 
amount to "you are divorced ;" and as 
where the words "you are divorced" are 
expressly mentioned, no more than a single 
divorce takes place, so also, in this case, a 
single divorce only takes place a fortiori, 
because mere implication is weaker in its 
effect than the express mention of anything.* 
Seventeen which effect an irreversible di- 
vorce. AND from all other implications of 
divorce besides those three, where divorce 
is the husband's intention, a single complete 
(or irreversible) divorce takes place ; or if 
he intend three divorces, three divorces take 
place : or, if two, two divorces ; and these 
expressions of implication of divorce areas 
follow : ' You are separated !" "vou are 
cut off 1"- "you are prohibited !" "the 
reins are thrown upon your own neck 1" 
"be united unto your people !" "vou are 
devoid 1" "I give vou to your family !" 
"I set you loose I" "your business is in 
your own hands !" you are free !" 
"veil yourself I" "be clean [" "so forth f" 
"go to!" "go !" "arise 1" "seek for 
a mate I" all which expressions are impli- 
cative of divorce, as each of them bears a 
construction either of divorce or otherwise ; 
since "you are separated !" may either mean 
you are separated (from me in marriage"), 
or "Vou are separated (from your familv"), 
In the same manner, "you are cut off I" 
may ^ either mean "you are cut off (from 
marriage") or "vou are cut off (from your 
familv and friends") : and so also "you are 
prohibited !" may either mean "you ar 
prohibited (in marriage"), or "you are 
prohibited (to me as a companion because of 
vour evil disposition"). In the same manner, 
"the reins are thrown upon vour own neck I" 
may either mean "you are at liberty to ?o 
where you please (as I have divorced vou)," 
or "yon mav go to visit your parents," and 
so forth) ; and so also, "be united unto your 
people 1" mav either mean "return to your 
family (as I have divorced you,") or ("as 
vou are unfit for society on account of the 
badness of your disposition"). You are 
devoid." may, in the same manner* either 
mean "you are devoid (of marriage)," or 
"you are devoid (of virtue and religion) ; and 
so also, I give you to your family !" may 
either mean, "I return vou to vour family 
(as I have divorced you), or, "I return you 
to your family (on account of your evil 
disposition, in order that you may remain 
there") ; agreeably to the same mode of rea- 
soning, I set you loose I" may either 
mean "I set you loose (from the restraint 



i or no otnor alrtnir urif-K von 



An observation it here introduced in the 
text, which, as it turns upon a point of 
grammatical criticism, is incapable of trans - 

latirkn at\/l i thorfir\rf nrfftaari1v 



BOOK IV. CHAP. II.] 



DIVORCE. 



of marriage, as having divorced you)/' or 
"I set you loose (to go where you please) ;" 
so also, "your business is in your own hands/' 
may either have respect to divorce, or in anv 
other circumstance ; and "you are free !" 
may either imply "you are free (from the 
bond of marriage)/' or, "you are free (as 
not being a slave)/ 1 and as also, "veil 
yourself!" may either mean "veil yourself 
(from me as I have divorced you)/' or, "veil 
yourself (that vou may not be seen by ^a 
stranger) ;" in the same manner, "be clean 1" 
may either mean, "ascertain whether your 
womb be free from seed, that you mav be en- 
abled to marrv with another man," or, "that 
the descent of a child begotten upon you may 
be known ;" and so also, "cro forth 1" may 
either mean, "go forth (as I have divorced 
you)/' or. "go forth (to visit your parents);" 
and, "go to 1" "go !" "arise 1" may 
cither signify, "go to (and so forth) as I 
have divorced you," or, "go to (and so 
fortM and do not provoke me to divorce 
you ;" so also, "seek for a mate 1" may 
either mean, "seek for a husband, as I have 
divorced you/' or, "seek for a proper com- 
panion to sit with you :" since, therefore, all 
those expressions admit the construction 
either of divorce or otherwise, the intention 
is essential to their effect, except where the 
husband uses them in reptv to a requisition 
of divorce made by his wife, in which case 
the Kazee is to decree a divorce, but vet it 
does not exist as a divorce between the hus- 
band and God, unless surh was his intention.* 

THE compiler of the Hedava observes that 
Kadooreehas not made any distinction what- 
ever between these expression* in divorre : 
on the contrary, he has said, "from all those 
expressions, when used in renlv to a reouisi- 
tion of divorce, a divorce takes place, inde- 
pendent of the intention, in a legal view, but 
not in a religious view," whereas jt is not so, 
this rule being confined to such expressions 
as are incapable of beinc construed into a 
denial of the requisition of divorce. 

IT is to be observed as a rule, that there are 
three possible situations in which the person 
making use of these expressions mav stand ; 
FIRST, a general situation, that i. where he 
is neither swayed by anger, nor by any re- 
quisition of divorce, but acts from an un- 
biased volition ; SECONDLY, where divorce is 
the subject of discourse at the time of speak- 
ing (as, for instance, where it is demanded 
of him by his wife) ; THIRDLY, where he is 
under the impulse of anger. The expres- 
sions of implication are also of three kinds : 
FIRST, those which equally bear a construc- 
tion either of denial or assent ; SECO> DLY, 

*That is to say, although divorce take 
place in point of law from the judicial decree, 
yet in foro conscientiae the man must con- 
tinue to hold hi ma* If married, insomuch that 
he cannot, without sin, marry another wo- 
man, in lieu of her who is thus divorced. 
This is the distinction between law and reli- 
gi on in divorce throughout. 



those which can be construed into assent 
only : and, THIRDLY, those which may be 
construed either into assent, or into excla- 
mations of contumely and reproach ; and, in 
the first of these situation, divorce does not 
take place from any of those expressions, but 
by intention ; and if the husband declare 
that he had no such intentions, his declara- 
tion is to be credited, because they all bear a 
double construction, and hence the intention 
is necessary to establish the effect ; and, in 
the second situation, divorce takes place in- 
dependent of the intention in a legal view, 
and the declaration of the husband is not to 
be credited, where he has used expressions 
bearing a construction of assent only ; which 
are as follow : 

"You are disengaged 1" 

"You are separated I" 

"You are cut off 1" 

11 You are prohibited 1" 

"Count !" 

''Your business is in your own hands I" 

"Choose !" 

The reason of which is, that the evident 
meaning of the husband, in using them in 
reply to a requisition of divorce is divorce, 
as they do not bear a construction of denial ; 
but if, in this situation, the husband use any 
of these expressions which may be construed 
equally into denial or assent, divorce does 
not take place but by intention ; and the 
Declaration of the husband, with respect to 
his intention is to be credited. The expres- 
sions alluded to are as follow : 

"Go 1" 

"Got up I" 

"Veil yours'elf 1" 

"Get out 1" and so forth ; 
because these words may all be construed 
into denial of the request : and as the denial 
of a request is a circumstance less forcible 
than the act of divorce, they are rather to be 
taken in the former sence : but yet, as they 
also bear a construction of assent they occa- 
sion divorce, where such is the intention. 
Those expressions may be construed into a 
denial of the request, on account that, "Go!" 
may mean, "quit thus speaking ; Be 
gone I and do not talk thus ;" and the same 
of "Veil yourself!" as a direction to put 
on the veil sometimes implies an order to go 
away ; wherefore it may imply on this occa- 
sion, "go away, and leave off speaking in 
this manner ;" and the same also of, ' get 
out |"_but, in the third situation, divorce 
does not take place without the intention of 
the speaker, from the use of any expression 
of implication, except such as may be equally 
construed into assent, and into exclamations 
of contumely and reproach ; and those are 
the three following : 

"Count !" 

"Choose !" 

"Your business is in your own hands IV 
from all of which, when used in arffeer, di- 
vorce takes place in point of law, indepen- 
dent of intention ; and the declaration of the 



86 



DIVORCE. 



[VOL. I. 



husband, denying such intention, is not t< 
be credited, because the circumstance o 
anger proves the intention to be divorce I 
is recorded from Aboo Voosaf that if the hus 
band were, in ang_>r, to say, "I have no 
property in you !" or, "I have no contro 
over you 1" or, "I give you your own way !' 
or, "I have separated from you !" or "join 
yourself to your people !" His declaration 
is credited, even where he denies having in 
tended divorce, because these expressions 
may ail be construed into exclarmtions of 
contumely or reproach, as well a* of divorce ; 
as his words, "I have no property in you !" 
may mean, "because you are so bas<i that 
you are incapable of being considered as a 
property ;" and, in the same mannr, his 
words, "I have no control over you!" may 
mean, "because of the wickedness and stub 
bornness of your disposition;" and so also, 
"I give you your own way !" may mean, 
" because J cannot direct you ;" and, in like 
manner, "I have separated from you !" miy 
mean, "because of your vicious disposition," 
WHAT has just been stated, viz , that 
"where the husband says, you are separated ! 
or, you are cut off ! divorce irreversible takes 
place," is the opinion of our doctors Shafei 
has said that the divorce occasioned by these 
words is reversible, because the reason why 
those expressions occasion divorce is, that 
they are implication of divorce ; whence it 
is that the intention is a condition of their 
effect, and also, that the divorce occasioned 
by them is complete in part of number, the 
same as in an express divorce, where the 
husband is authorized to pronounce three 
divorces, and having given cme, his autho- 
rity remains with respect to two other ; 
and also, that if he intend three divorces, 
three take place accordingly ; and such being 
the case, reversal is lawful here in the same 
manner ^as in an express divorce, the thing 
which is implied. The argument of our 
doctors on this point is, that the act of irre- 
versible divorce has proceeded in this case 
from a competent person, and is exercised 
upon a fit subject of it, according to the 
power by law established over the wife, 
which enables her husband to put. her away 
in such a manner as that she shall be deci- 
sively and irreversibly separated from him ; 
and here the husband is competent to the act 
of irreversible divorce, as being of sound 
mind and mature age ; and the wife is a fit 
subject of it, as being lawfully liable to 
irreversible divorce before cohabitation (and 
also after it where for husband pronounces 
it for a compensation) ; and this power, like 
many others, is instituted bf the law with a 
view so the convenience of the individual, 
which sometimes requires a decisive sepa- 
ration to be effected slowly and deliberately 
(as in divorce reversible), wnereas, at other 
times, it requires that such a separation 
should take place on the instant, without 
any continuance of connexion with the sub- 
jectof it (asm the triple form ofdi >rce), 
an^ at other times it also requires separation 



to be completely effected on the instant 
admitting a continuance of connexion with 
the subject ; and it is indispensably neces- 
sary that this last species of irreversible 
separation be also countenanced by the law, 
in order that the door of r?piration may not 
be closed aiainst the husbind if he should 
repent (that is to say, that it miv remain in 
his power again to marrv his wife, without 
her bein? previously married to another) ; 
and also, in order that the woman's delicacy 
may be prese'vH fr->m the effect of a divorce, 
by the man takin? her back w thout the 
intervention of marriage with another ; and 
such being the case, divorce irreversibly 
ensues from those expressions. Mn reply to 
the assertion of Shafei, we observe that those 
expressions are not positively implications, 
since each of them may be used in its own 
literal sense ; and as to what he further 
alleges, that "the intension is a condition of 
their effect" (thence inferring that they are 
undoubtedly implications of divorce), the 
inference is not admitted, because the inten- 
tion is made a condition for the purpose of 
ascertaining one of two species of separation, 
and it is thus made a condition for the 
purpose of ascertaining one of two sorts of 
a separation which is a separation from 
marriage, and not for the purpose of divorce 
taking place : with respect to what Shafei 
further advances, that "the divorce occa- 
sioned by any of those expressions is incom- 
plete in point of number" (thence inferring 
that they are implication* of divorce), we 
reply that the piucity of the number of 
divorces is not on account of those expres- 
sions beinq implications of divorce, but 
because divorce is established on account of 
the connexion of marriage becoming dis- 
solved ; that is to say. on account of those 
expressions the tie is dissolved, and divorce 
sit?nifi.s the dissolution of a tie, wherefore 
divorce is 'necessarily established ; the infe- 
renc'e, therefore, is that the taking place of 
divorce, is involved ; but not that the afore- 
said expressions are implications of divorce ; 
and with respect to what he further says, 
".hat "if the hubind intend three divorces 
rom the use of any of those expressions, 
hree take place accordingly" (infering that 
hey are implications of divorce), we reply 
:hat the intention of three divorces from 
those expression is approved only as three 
divorces is one species of separation (for 
separation is of two species, the mild and 
the rigorous*), and, where there is no inten- 



*By the mild separation is meant that 
jpecies of complete divorce which admits of 
he husband re-marrying his repudiated wife 
without the necessity of her intermediate 
marriage with another. By the rigorous 
eparation is meant that sort of complete 
divorce which does not admit of the man 
re-marrying his repudiafed wife until she 
shall have been married to, enjoyed, and 
epudiated by another man. They have 
been already fully explained. 



BOOK IV. CHAP. Ill 



DIVORCE 



87 



tion, the least forcible is established. It is 
to be observed that an intention of two 
divorces is not approved with our doctors 
contrary to the opinion of Ziffer : but this 
has already been treated of. 

IF a man say to his wife, "count ! count ! 

^hprr n * f ?u d afterw ?4 s decla re that by 
the first of these words he meant divorce 
and by the others the repetition of the 
woman s courses [requisite to its completion! 
his declaration is credited in point of law as 
he appears to have intended these last words 
in their true sense, it being customarv for 
alu'sband, where he divorces his wife to 
desire her to count the course necessary to 
the completion of her Edit ; and hence 
appirent circumstances bear evidence to his 
intention; but if he were to confess that in 
these last words he had no particular inten- 
tion, three divorces take place, because 
from his ^tending divorce by the first word, 
it follows that he repeated it a second and 
third time, in a situation where divorce is 
the subject of discourse, and this situation 
proves his intention in these repetitions to 
be divorce also ; wherefore if he were to 
deny this intention, yet he is not credit^ 
circumstances bearing evidence against him 
contrary to where he declares that he had no 
intention of divorce m any of the three 
words for there divorce does not take place 
at all, because circumstances do not tend to 
disprove his declaration ; and contrary, also 
to where he declares divorce to be his inten- 
tion in the third word, but not in cither of 
the two preceding m which case no more 
than one divorce takes place, because, as he 
docs not put the construction of divorce upon 
the two preceding words, it does not appear 
hat divorce was the subject of discourse at 
the period of his speaking the last. Tt is 
to be observed that the declaration of the 
speaker in denial of his intention is not to 
be credited, unless it be given, upon oath, 
because he relates what, having passed ableW 
m his own mind cannot be knownto any 
other P erson,-and hence he is the Ameen , 
or inquisitor, with respect to the intelligence 



CHAPTER HI. 

OF DELE CATION OF DIVORCE 

Definition of the phrase. -TAFWEEZ AL 
TALAK, or delegation of divorce, is where the 
husband delegates or commits the pronounc- 
ing of divorce to his wife, desiring her to 
give the effective sentence, and it is compre- 
hended under three different deeds, termed 
Option, Liberty and Will. 

Section 1. 

n . A . Ofjkhtiyar or Option. 

Delegation by Option confers on the wife 
a power of divorcing herself; but this right 
of option is restricted to the' precise place or 
nutation in which she receives, it.-Iw a man 



say to his wife "choose I" (thereby meaning 
divorce), or "divorce yourself 1" the woman 
has a power to divorce herself so long as she 
remains in the precise situation* in which 
she received it ; but if she remove, or turn 
her attention to anything else, the power 
thus vested in her is done away, and her 
option no longer remains, because the exerise 
of the optional power thus committed to the 
woman is held, by all the companions, to be 
restricted to the precise situation in which it 
is received : and also, because this species of 
delegation is a transfer of power, not a com- 
mission of agency, and to give effect to the 
farmer, the reply is required on the spot of 
declaration, the same as in sale, since all the 
moments of one situation are accounted as a 
single moment : but a situation may be 
altered, sometimes by change of place, at 
other timrs bv chance of employment, because 
a situation of eating and drinking (for in- 
stance) is not that of disputation ; and a 
situation of business, on the other hand, is 
neither a situation of eating or drinking, 
nor of disputation. 

And is annulled by her 'removal. THE 
right of option of the woman is annulled, 
upon the instant of her rising from her seat, 
as that circumstance proves her rejection of 
it : contrary to the case of SiU : m or a Sirf 
sale, which Hoes not become null upon the 
instant of rising or removing, the cause of in 
validity there beins removal without seisin. 

Intentinn on the part of the husband, is 
requisite to constitute a delegation. AMD 
where the husband thus addresses his wife, 
an intention of divorce is a condition requi- 
site to tru> effect (as mentioned in the preced- 
ing chnnter) because the word "choose 1" 
is one of the implications of divorce, as it 
is capable of two constructions, by one it 
desires the woman to choose herself, and by 
another to choose her clothes, and so forth : 
anrl if she choose herself, f and divorce irrever- 
sible takes place. Analogy would suggest, 
in this case, that from choosing herself 
nothing whatever should ensue, although 
divorce be the intention of the husband, be- 
cause he cannot himself effect divorce by 
the use of such words; that is to say, if he 
were to say to his wife, "I have choosen my- 
self from you," nothing whatever would 
follow, and consequently how can he give a 
delegation of this nature ? But here divorce 
takes place upon a more favourable construc- 
tion, for two reasons: FIRST, all the com- 
panions acre* that divorce takes place from 
the use of this expression ; SECONDLY, the 
husband has it at his option either to continue 
the marriage with his wife or to put her 
away and hence it follows % that he may con- 
stitute her his substitute with respect to that 

Arab Majlis This term is treated of 



* g 

Arabic, signifying that she chooses her 
liberty from the matrimonial tie. 



88 



DIVORCE. 



[VOL. I. 



"rule: and where the woman is thus left it 
her option, and says "I choose mayself, a 
divorce irreversible takes place, because the 
woman's choosing of herself cannot be estab- 
lished but by her becoming sole and inde- 
pendent, which can only be the case in 
irreversible divorce, as, where it is reversible, 
the husband is at liberty to take her back 
without her consent at any time during the 
continuance of her Edit, and thus she would 
not become sole and independent on the 
instant, which the nature of the case requires. 

Under this form a single divorce only tt>kts 
place t whatever may be the intention IT is 
to be observed that, in the case at present 
under consideration, one divorce only can 
take place, and not three although the 
husband should actually have intended the 
latter option not being of different descrip- 
tions : contrary to complete separation, for 
if the husband wer to say, "you are com- 
pletely separated/' intending three divorces, 
the three take place accordingly, where such 
is his intention, because this complete sepa- 
ration is of two descriptions, the mild and 
the rigorous, and it follows that intention 
with respect to and of these holds good. 

And, to effect divorce, it is requisite that 
the personal pronoun be mentioned by one or 
other of the parties. IT is also to be observed 
that, where the husband uses the expression 
"choose 1" it is requisite that the personal 
pronoun self be mentioned either bv the 
husband or the wife, insomuch that if the 
husband were to say, "choose I" and the 
wife answer, "I have chosen," divorce does 
not take place, because the effect of divorce 
is established by all the doctors upon the 
condition of the mention oF the personal 
pronoun by one of the parties ; and also, 
because the pronoun cannot be understood 
under any circumstances of ambiguity, and 
these words of the woman bear two con- 
structions ; one, that she chooses her husband 
(which would not occasion divorce) ; and 
another, that she chooses her self (which 
would occasion irreversible divorce) ; divorce 
therefore, does not take place in defect of the 
pronoun, on account of its ambiguity. 

That is, either by the husband, in his 
declaration. IF a man say to wife, "choose 
yourself," and she answer, "I have chosen," 
a divorce irreversible takes place, because 
the word self here occurs in the words of the 
husband, and the words of the woman are 
in reply to him ; and hence her words vir- 
tually comprehend herself. And, in the 
same manner, if the husband were to say, 
"choose an option," and she reply, "I have 
chosen," a divorce irreversible takes place: 
the proofs here are drawn fronl the Arabic. 

Or by the wife in her yepiy.lF a man 
say to his wife: "choose I" and she reply, "I 
have chosen myself," divorce ^ takes place, 
where such was the husband's intention 
because the word e(f here occurs, in the 
Veply given by the woman, and the expres- 
sion of the husband bears the construction 
of that which he intended. 



And divorce takn place, although her 
option of it be expressed in the Mozaree or 
common tense. IF a husband say to his 
wife, "choose !" and she reply to him in 
the Mozaree tense [which* in the Arabic, 
is common to the present and future], saying 
"I do (or will) choose myself," divorce takes 
place, on a favourable construction. Ana- 
logy would suggest in this case that no di- 
vorce takes place, because, if the woman's 
reply be taken only in the future, it stands as 
a promise, and bears that construction also, if 
taken in the present ; and hence divorce 
does not take place, from her answer 
amounting only to a promise in the former 
sense, and from its ambiguity in| the latter ; 
as if a man were to say to his wife, "divorce 
yourself," and she were to reply, Atliko 
Nafsee ["I do (or will) divorce myself"], 
in which case divorce does not take place, 
and so in this case likewise : but the reasons 
for the more favourable construction are 
twofold ; FIRST, it is recorded that, upon 
the descent of the passage of the Koran 
relating to option, viz. O MY SON 1 SAY 
TO YOUR WIVES, If you desire the life of this 
world" (to the end), the Prophet said to 
Aysha, "I have something to mention to 
you, but do not reply to it until such time as 
you consult your parents," after which he 
read to her the above passage, and then gave 
her an option : and Aysha said, "in such a 
matter as this I shall not consult my father 
or mother, but will (or do) choose GOD and 
his Prophet," which words the Prophet con- 
sidered as a reply, importing, "I do choose ;" 
SECONDLY, the word Akhtarto ["I do (or 
will) choose myself"], express the present 
literally, and the future figuratively, the 
same as the word Ashado [I do (or will) 
testify], in giving evidence before a magis- 
trate ; contrarty to where a woman answers 
Atliko Nafsee [I do (or will) divorce myself], 
for here it is impossible to receive her words 
in a present sense, as they do not relate to a 
thing now existing ; whereas the expression 
Akhturto [I do (or will) choose myself] , on 
the contrary, relates to a thing now present, 
to wit, the woman choosing herself. 

Where the husband gives a power of op- 
tion thrice repeated, and the wife make only 
a single reply, yet three divorces take place 
from it, independent of the husband's in- 
tention. IF a man say to his wife, "choose !" 
choose I choose 1" and she reply, "I have 
chosen the first," or "the second" or "the 
third," three divorces take place, according 
to the doctrine of Haneefa, and the in* 
tention of the husband is not requisite 
although the word here used be an implied 
expression, because his repetition of the 
word "choose 1" proves his intention to be 
divorce, as the option given to the woman 
is repeated only with that view.* The two 
disciples say that only one divorce takes 



Some grammatical reasoning, incapable 
of translation, is omitted in this part. 



BOOK IV -CHAP. III.] 



DIVORCE. 



89 



place in cithtr case ; but they agree with 
Haneefa, that the intention is not essential, 
for the reasons above assigned. And, in the 
same manner, if the woman were only to 
reply, "I have chosen," it is effective of 
three divorces. And so also, if she were to 
reply, "I have chosen a choice." This is 
admitted by all the doctors ; because, where 
she only says, "I have chosen," it is pro- 
ductive of three divorces : and, consequently, 
when she speaks in a way to give this ad- 
ditional force it produces the same a fortiori. 
And if she were to reply, "I have divorced 
myself," or "I have chosen myself with 
respect to one divorce," one divorce rever- 
sible takes place. 

Where the word divorce is mentioned by 
the husband, the divorce which follows is 
reversible. IF a man say to his wife, "one 
divorce is at your option," or "choose with 
respect to a single divorce." and she reply, 
"I have chosen myself," one divorce re- 
versible takes place, because the man has 
given the woman an option so far as one 
divorce, and expressing it in direct terms 
(as above)* the divorce proceeding from it is 
reversible. 

Section //. 
Of Amir-ba-Yed t or Liberty.^ 

In a delegation of liberty t divorce takes 
place according to the number mentioned by 
the wife : independent of the husband's in- 
tention : and the divorce which follows is 
irreversible IF a man say to his wife, 
"your business is in your own hands," 
intending three divorces, and the woman 
answer, "I have chosen myself with one 
choice," three divorces take place. The 
proof of this is drawn from the nature of 
these expressions in their original idiom. 

BUT if the woman were to reply, "I have 
divorced myself with one divorce," or "I 
have chosen myself by one divorce," one 
divorce only takes place ; and thia divorce is 
irreversible, although the reply be delivtred 
in express and not in ambiguous terms, 
because it bears relation to the words of 
the husband, which being an implication, 
amount to a delegation of irreversible di- 
vorce, and not of reversible. The reason 
why an intention of three divorces is ad- 
mitted in the present instance, is that the 
words, "your business is in your own hands,* 
are capable of both a restrictive and an ex- 
tensive construction, and hence may imply 
three divorces, as well as one ; an intention 
to that effect therefore holds good, since that 
is one of the senses in which the words may 
be taken : contrary to the expression con- 
sidered in the preceding section, to wit, 
"choose !" that being incapable of bear- 



*Because an express divorce is uniformly 
reversible unless otherwise Specified. 

tThis is a contraction of Amir-ke-ba- 
Yed-ke, literally, 'tyour business is in your 
own hands, i.e., "you are at liberty to do as 
you please."The word liberty is adopted 
mgly, for the sake of brevity. 



ing an extensive construction, as was there 
demonstrated. 

Delegation of liberty may be restricted to 
a particular time, or to several different 
specified periods of time.;Iv a man say to 
his wife, "your business is in your own 
hands this day, and after to-morrow," the 
night is not included : and if the woman 
reject the liberty thus given to her for this 
day, it is, with respect to this day, annulled ; 
but it still remains to her for the day after 
the morrow, because the husband has ex- 
pressly specified two particular periods, with 
the intervention of a similar periods to 
which the liberty does not extend (to wit : to- 
morrow) ; and hence it appears that those 
are two distinct liberties, and the rejection 
of one does not amount to a rejection of the 
other. Ziffer says that both amount only to 
a single liberty, this being analigous to a 
case where a man says to his wife, "you are 
divorced this clay and the day after to-mor- 
row," which implies one divorce only, and 
not two (on the idea of one taking place 
this day, and the other the day after the 
morrow) ; and hence, in like manner, one 
liberty only is implied. -But to this it may 
be replied, that divorce is not of a nature 
to admit restriction to any particular time, 
whereas liberty is capable of such restriction ; 
and hence that which regards the first period 
mentioned is restricted to that period, and 
that which regards the second period com- 
mences de novo. 

IF a man say to his wife, "Your business 
is in your own hands to-day and to-morrow," 
the night is comprehended in it : and, if the 
woman should* reject the liberty on the in- 
stant, it is totally annulled, and does not 
return on the morrow (according to the 
Zahir Rawayet), as this amounts only to one 
liberty, because that between the two periods 
specific 4 ro similar period intervenes to 
which the liberty does not extend. 

OBJECTION. Although a period similar 
to the two specified does not intevene, yet 
night intervenes, from which it would follow 
that the liberty given for to-day and to- 
morrow is not a single liberty. 

REPLY. Two distinct liberties are not 
occasioned by this circumstance, because the 
intervention of night, althoughit may inter- 
rupt or suspend a matter, does not divide 
or terminate it, as in a public court, for 
instance, which may, on account of the night 
coming on, be adjourned, without any actual 
breach in the series of its proceedings ; thus 
it is the same as if the man were to say, 
"your business is in your own hands for two 
days," in which* case a single liberty only is 
understood. 

And it is not annulled by the wife's rejec- 
tion of it until the time or times mentioned 
be fully expired. IT is recorded, from Aboo 
Haneefa, that although the woman should 
reject the liberty on the instant, yet it stiKi 
remains with her for the following day, at 
she is not empowered to reject it (that is to 
s , , she cannot refuse her assent to receiving 



90 



DIVORCE 



[VOL. I. 



itfTrbecoming established in her upon the 
husband saying, "your business is in your 
own hands/ 1 independent of her consent 
(as in the direct execution of divorce, for 
instance, where, if the husband were to say , 
"you are divorced," divorce takes place in- 
dependent of the consent of the wife) ; and 
such being the case, liberty remains still 
with her for the morrow, when she may 
lawfully make use of it bv chpsmg divorce. 
The ground upon which Zahir Rawayet 
proceeds, is that as, if she were to choose 
divorce as this day, no liberty remains with 
her for to-morrow, 10 if she reject the liberty 
this day, no right of choice remains with her 
for to-morrow, because a person who has a 
choice of two things is not authorized to 
choose more than one of them 

IT is recorded, from Aboo Yoosaf, that if a 
husband say to his wife." your business is in 
your own hands for this day, and the same 
for to morrow," this amounts to two liberties 
because here the delegation applies to two 
portions of time, distinctly and separately 
expressed : contrary to the preceding case, 
where the times arc not thus discriminated, 
but are bothmentiored, under one head 

The time of it mnv be fix*d fnr the occur 
rence of any specified event If a man say 
to his wife, "your business is tn vovir own 
hands on "the day on which such an on- 
arrives," and the person mentioned arrive, 
but his arrival be not known to the w.fe 
until night, her rieht of choice no longer 
remains, because liberty is a thing of con- 
tinuance, and hence the word day. with 
which it is associated, is restricted to the 
d ay time, and thnt having passed away, it 
discontinues. 

It is not anrnilf^ by delay (whey there is 
no specification of time), nor until the t..i 
rises T/rom her seat. #C.-!F a man sav to hi* 
wife "your business is in vour own hands. 
or "chooser* and she delay answering the 
whole day, and do not rise from her seat, h<r 
right of option remains to her so Ions as she 
does not employ herself in any other mtrr. 
because a delegation of divorce by the forms 
of liberty or option is a transfer of power to 
execute divorce (that is, the husband by 
that delegation empowers his wife to Rive 
divorce, as persons are termed empowered 
who act for themselves, and the act of the 
woman here 's pronouncing divorce upon 
herself, wherefore this property is simposed 
to reside in her), and in transfer oi power 
a privilege of reply continue* to the end of 
the situation of declaration, as has been de- 
monstrated in the beginning of this chanter . r 
And if the woman hear the declaration, 
respect is had to the situation in which 
she hears it ; but if she should not hear it, 
respect is. in that case, had to the situation 
in which she is informed of it, because, 
calthongh Amir-ba-Yed, or liberty, be a 
transfev of power to execute divorce, yet the 
property of suspension is also allowed to 
exist in it* as it is a suspension of the event 
of divorce upon the act of the wife in pro- 



nouncing it, and hence it comprehends two 
things, a transfer of power, and a suspen- 
sion ; in the sense of a suspension, it con- 
tinues in force beyond the Majlis, or continu- 
ance of the situation of declaration, to the 
Majlis or situation in which the woman 
understands or is informed of it, where she 
is absent, or in the >ense of a transfer of 
power, it is annulled, on her rising from her 
seat, where she is present ; but the situation 
of the husband is not regarded, because the 
suspension, is absolute with respect to him ; 
contrary to a case of sale, as in that the de- 
claration of sale does not remain in force 
bevond the Majlis of declaration, since in a 
sale the Majlis or situation of the seller is 
regarded as well as that of the purchase : 
and the retraction of the seller, at any time 
previoui to th=; consent of the purchaser is 
admitted, as sale, is merely of a transfer of 
prooerty, in which suspension is not of all 
understood ; now since it appears that the 
situation of the wife alone is regarded, and 
not that of her husband, we must recollect 
that her situation may be altered in various 
ways sometimes by removal from one place, 
to another, and sometimes by her employing 
herself in any other matter, as was previously 
stated. 

But tt is annulled on the instant of her 
rising from her seat. THE option of a 
woman who is left at liberty to choose is 
annulled on the instant of her rising from 
her seat, as this act proves rejection, be- 
cause by getting no the attention is deranged 
and withdrawn from the present subject : 
contrary to a case where she delays answer- 
incr for a whole day, for instance, and does 
not nse from her scat, nor employ herself 
in anything else : far here her option re- 
mains to her, as a Majlis or situation is some- 
times of a short and sometimes of a long 
duration, wherefore her right of option con- 
tinues untitauch time as something appears 
sufficient to terminate the Majlis, or to prove 
rejection, And here it is to be observed, 
that by employing herself in anything else 
is to be understood such a thing as is, in its 
naturp, terminative of her situation, and not 
any general thing. 

Jt is not annulled bv a change of posture 
from a mere active to a mere quiescent post- 
t1 * nn . IF the woman be standing, at the 
period of receiving the liberty of option 
from her husband, and afterwards sit down, 
her ontion remains, and is not annulled, as 
her sitting does not imply rejection, but 
rather the contrarv. since her attention is 
thereby more collected. And the rule is 
the same where the woman, being seated, 
leans unon a pillow, or having leaned upon 
her pillow fat the time the husband speaks), 
sits up without a pillow, because these are 
no more than changes from one mode of 
sitting to another, and df not import rejec- 
tion any more than where a person sitting 
upon one part changes and sits upon another. 
Our author remarks that this is the doc- 
trine of the Jama Sagheer, and is most ap- 



BOOK IV. CHAP. Ill,] 



DIVORCE. 



91 



proved. It is elsewhere said, that where the 
woman is sitting up without a pillow, and 
then leans upon a pillow, option no longer 
remains, as this shovs an indifference re- 
specting it ana >un ing to a rejection. 

A wife miy signify her wish to con^ult 
her friends, without prejudice to her right of 
option IF the woman, on receiving a liberty 
of opinion, say that she wishes to see her 
father in order to consult him, or to get 
witnesses, in order to have their evidence, 
her option remains, because counsel is ex- 
pedient in every business, and witnesses are 
requisite to controvert the husbmd's denial 
of the fact ; and hence neither of these 
wishes expressed on her part is a proof of 
rejection. 

IF the woman be riding upon a quadruped 
or in a camel-litter, and stop the animal on 
her husband's offer of liberty, still the right 
of option is not annulled ; but if she pro- 
ceed upon her journey, it is annulled be- 
cause the going on or stopping of the animal 
is the same with those acts in the woman, 
since its motions depend upon the rider. 

A BOAT or ship is the same as a house, as 
by the going on of the vessel the woman's 
option is not annulled ; because its motion 
does not always depend upon the person 
whom it carries. 

Section HI. 
Of Masheeator Will 

Where a man empowers his wift to divoce 
herself in express terms t the divorce which 
follows is reversible. IF a man say to his 
wife, "divorce yourself/' not having any 
particular intention, or intending one divorce, 
and the woman reply, "I have divorced my- 
self/' a single divorce reversible takes place ; 
and if she were to say, "I have given three 
divorces," three accordingly take place ; 
where such is the intention of the Jausband : 
the reason of this is that divorce, being a 
general expression, takes place in the lowest 
species ; but as, like other generic nouns, it 
also applies to the whole, an intention of 
three divorces is admitted : and, where there 
is no particular intention, a single divorce 
reversible takes place, because the powey of 
divorce is delegated to the wife in express 
terms, and express divorce occasions a divorce 
reversible. If the husband should in this 
case intend two divorces it is not admitted, 
because a generic noun does not bear that 
construction, where the woman is free ; but, 
if she be a slave, an intention of two divorces 
is admitted, that being considered as the 
whole, with respect to her. 

Although her reply be expressed in the form 
of an irreversible divorce. Ir a man say to his 
wife, "divorce yourself/' and she reply, "I 
have separated myself/' a divorce reversible 
takes place, because separation is of the same 
nature with divortje, since, if a husband 
were to say to his wife, "I have irreversibly 
separated you [from me], intending divorce, 
a divorce irreversible takes place ; and, in 
the same manner, if the woman were (as 



here) to say, "I have separated myself/' and 
her husband reply. "I have consented 
thereto," she becomss irreversibly divorced ; 
and hence the expression of the woman, "I 
have irrevers.bly separated myielf," stands 
the same as the husband's delegation, which 
is of simple divorce ; but here the description 
of irreversibility which the woman has added 
to the simple divorce is held to be nugatory : 
and the simple divorce only takes place ; no 
if she had replied, "1 have repudiated my- 
self by one irreversible divorce," in which 
case a divorce reversible only would take 
place ; contrary to a reply of option, for if 
she were to answer, "I have chosen myself," 
no divorce whatever would take place, as 
these words are not of the same nature with 
divorce, for which reason it is that if a man 
were to say to his wife, "I have chosen you," 
or "choise I" intending divorce, no divorce 
whatever takes place ; and in like manner, 
if the woman were to speak first, saying, 
"I have chosen myself," and her husband 
reply, "I have consented," no divorce what" 
ever takes place ; yet it is an universally 
received doctrine, that if the woman say, "I 
have chosen myself," in reply to a delegation 
of option, divorce takes place ; but the words 
of the husband in the present case, namely, 
"divorce yourself/' is not a delegation of 
option, and hence the reply of the woman, 
as above stated/ '1 have chosen myself/' is 
nugatory. 

IT is recorded, as an opinion of Haneefa, 
that in the present case divorce does not take 
place from the reply of the wife, "I have 
separated myself," because the woman acts 
contrary to the power vested in her, by 
taking upon her to pronounce a thing diffe- 
rent from that delegated to her by her hus- 
band, as the expression "separated" is 
different from divorce, the one being implica- 
tive and the other express ; and the husband 
delegated express divorce only. 

The power, when thus granted, cannot be 
retracted IF a husband say to his wife, 
"divorce yourself," he is not at liberty to 
retract, as his expression involves a vow,* 
because he has, in this instance, suspended 
divorce upon the execution of it by his wife, 
and a vow is an obligatory act, for which 
reason a man is not allowed to recede from 
it. If, however, the woman rise from her 
seat, or remove from the place, the words of 
the husband, as above, transferring the power 
of divorce to her, are annulled, their force 
being confined to the situation where the 
offer is made : contrary to where he says to 
her, "divorce your Zirra [fellow- wife], as 



Literally, "his words express (or amount 
to(aYameen," that is to say, suspend the 
matter spoken of upon the occurrence of some 
condition on the event of which that matter 
takes place, independent of any further 
volition on the part of the ipeaker ; and it is 
therefore, with respect to him, absolute and 
unretractabie. Yameen is here translated 
vow, as the above is one definition of vow. * 



92 



DIVORCE. 



[VOL. I. 



this is a commission of agency, which is not 
restricted to place, and may be therefore 
rc'racted to the constituent whenever he 
pleases. 

The power may be granted generally. I* 
a husband say to his wife, "divorce yourself 
when vou please/' she is at liberty to divorce 
herself either upon the spot or at any future 
period, because the word when extends to 
all times ; and hence it is the same as if he 
were to say, '"divorce yourself at whatever 
time you like." 

IP a man say to another, "divorce my wife , " 
the person thus addressed may d.vorce her 
either upon the spot at any other time, 
and the husband may also retract, because 
this is a commission of agency, and therefore 
is not absolute, nor restricted in point of 
place ; contrary to where he says to his wife, 
"divorce yourself," this being a transfer of 
power, not a commission of agency,* as the 
woman thus addressed acts from herself and 
not from another. But if a man say to 
another, ''divorce such an one my wife," 
(adding) "If you please," the man is em- 
powered to divorce the wife upon the spot 
only : and here the husband cannot retract. 
Ziflfer says that this and the proceeding 
case are alike, the addition of "if you please" 
in the one instance, or the omission of it in 
the other, making no difference, because the 
person so commissioned afterwards acts from 
his own will, like an agent in sale, to whom 
it may have been said, "sell this thing if 
you please." The argument of our doctors 
is that the words of the husband are a transfer 
of power, as he suspends the divorce upon 
the will of the person whom he addresses, 
and he is the principal who acts from his 
own will ; divorce, moreover, admits of sus- 
pension, whereas sale does not. 

A wife empowered to give herself three 
divorces may give herself one divorce. IF a 
man say to his wife, "give yourself three 
divorces," and she give herself one divorce 
only, it takes plac accordingly, because, 
having been empowered so far as three 
divorces, it necessarily follows that she is 
enabled to give a single one. 

But, when empowered to give herself one 
divorce only, she cannot give herself three. 
IF a man say to his wife, "divorce yourself 
once/' and she give herself three divorces, 
nothing whatever takes place, according to 
Haneefa. The two disciples say that a single 
divorce takes place, because the woman has 
done that to which she was empowered, 
together with that to which she was not em- 
powered ; and hence it is analogous to a case 
in which a husband says to his wife, "I re- 
pudiate you by a thousand divorces" where 



*That is to say, after being thus em- 
Dowered, she stands as a principal in the 
execution of divorce, and not as an agent : 
and a commission of agency may be annulled 
at pleasure, whereas the power devolved to 
another to act as a principal cannot be so. 



three divorces take place, because he has 
pronounced that to which he is empowered 
along with that to which he is not empowered ; 
consequently the former takes effect, but the 
latter is nugatory ; and so likewise in the 
present case The argument of Haneefa is 
that the Wife has, in this case, attempted to 
do an act, the power of doing which has not 
been delegated to her by her husband, and 
hence she appears to divorce herself, first, 
and not in reply to the desire expressed by 
him, as he has empowered her so far as one 
divorce only, and between three divorces and 
one there is contradiction, the word three 
expressing a compound number, and one a 
single unit ; contrary to where a man pro- 
nounces a thousand divorces upon his wife, 
as here three take place, because he acts in 
consequence of the desire of another ; and 
contrary also to the preceding case (viz. 
where the husband desires his wife to re- 
pudiate herself by three divorces, and she 
declares one only), for here one divorce takes 
place on account of her being empowered so 
far as three : whereas, in the present case, 
she is not empowered so far as three, and 
having acted contrary to the power vested in 
her, what she does is nugatory. 

Where the wife's reply disagrees with tlie 
husband's declaration in respect to the nature 
ofthedivorce.it takes place according to his 
declaration, not according to her reply. IF 
a man desire his wife to repudiate herself by 
a reversible divorce, and she divorce herself 
irreversibly, or the contrary, that mode of 
divorce takes place which was desired by the 
husband : thus, if a man say to his ^ wife, 
"give yourself one divorce reversible," and 
she reply, "I have given myself a divorce irre- 
versible," a divorce reversible takes place, 
because the woman has declared a divorce in 
express terms, but with an additional descrip- 
tion, and "the latter is nugatory, as being 
contrary to the desire expressed^ by the 
husbcnd ; but the former (which is in its 
nature reversible) takes place, as being in 
conformity to the husband's desire : and, 
on the other hand, if the husband say to his 
wife, "give yourself one divorce irreversible," 
and she reply. "I have given myself " a 
divorce reversible," a divorce irreversible 
takes place, because the description of rever- 
sibility attached to the divorce by the wife is 
nugatory, since the husband, having himself 
affixed a description to it, does not require 
more of his wife than simply divorce, without 
any description ; hence it is the same as if 
she had pronounced the divorce itself in a 
defective way : thus the divorce takes place 
under whatever description may have been 
affixed to it by the husbad, whether re- 
versible or irreversible. 

Where the power is conditional upon the 
pleasure of the wife, it if annulled by her 
reply disaccording with the husband's declara- 
tion. IF a man say to his wife, divorce 
yourself thrice, if you please," and she give 
hergelf one divorce, no effect whatever fol- 
lows, because the meaning of his words i s 



BOOK [I. CHAP. III.] 



DIVORCE. 



"if you desire three divorces, repudiate 
yourself/' and the woman giving one only, 
it appears that she does not desire three, and 
hence, the condition not being fulfilled, the 
divorce does not take place. 

IP a man say to his wife, "divorce yourself 
once, if you please," and she give herself 
three, no divorce whatever ensues, according 
to Haneefa, because a desire of one divorce 
only is essentially different from a desire of 
three, this being analogous to a case of 
execution as before mentioned, that is to 
say, as the execution of three divorces in 
that instance was demonstrated to be a sen- 
sible contradiction to that of one ; so, in the 
present instance, a wish for three is con- 
tradictory to a wish for one ; and, from 
the woman pronouncing upon herself three 
divorces, it appears that she was not desirous 
of one ; and hence the condition is not 
fulfilled. The two disciples say that one 
divorce takes place on this occasion, because 
a desire for one divorce is comprehended in 
a desire for three, on the same principles as 
the execution of three divorces comprehends 
that of one (agreeably to their doctrine before 
mentioned) ; and hence the condition is 
virtually fulfilled. 

And so also, by her suspending her will 
up:n that of her husband. IF a man make a 
delegation of divorce to his wife, by saying 
to her, "you are divorced if you be desirous 
of it," and she reply, "I am desirous, if you 
desire it," and he reply, in return, "I am 
desirous" (intending divorce), the delega- 
tion is void, because the husband has sus- 
pended the divorce upon the will of the 
women where that is unrestricted, that is to 
say, independent of anything else ; but, from 
the conversation, it appears that she sus- 
pends her will upon that of her husband, 
and hence the condition of divorce, namely, 
the independent will of the wo&an, is t not 
fulfilled ; thus she does not act from option ; 
and the delegation is void of course.' The 
words of the husband, in the last reply, 
namely, "I am desirous," are not effective 
of divorce, although such be his intention, 
because there is no mention whatever of 
divorce in the words of the woman, from 
which the husband's wish to that effect 
might be inferred in bis answer, and the 
intention alone does not suffice, as it has no 
operation with respect to a thing not men- 
tioned j whereas, if he were to say, "I am 
desirous of your divorce," it takes place if 
he so intend it, because he in this case 
appears to give divorce de novo, as a desire 
expressed with respect to any thing implies 
the existence of that thing, and hence his 
expression, "I am desirous of your divorce," 
is as if he were to say, "I cause your divorce," 
which accordingly takes place : contrary to 
what would follow, if he were to say, "I 
intend your divorce, ' in which case divorce 
would not take place, because an intention 
expressed does not imply the existence of the 
thing intended. If, moreover, in the case 
now recited, the woman were to reply, "I am 



desirous if my father be so," or, "ifgucf 
a circumstance happen" (meaning a circum- 
stance which does not yet exist), and the 
father afterwards signify his desire, or the 
circumstance upon which she has suspended 
the divorce come to pass, yet divorce does not 
take place, and the delegation is void : but 
if she in saying, "if such a thing happen, " 
mean a thing which has already passed, 
divorce takes place, because suspension upon 
a condition ilready fulfilled amounts to im- 
mediate or unsuspended divorce. 

W/ien the power is expressed with an un- 
restricted particle (in respect to time), it is 
perpetual* extending to all times, and places. 
IF a man say to his wife, "you are divorced 
when you please," or, "whenever you please," 
and she reject his offer, saying, "I am not 
desirous of it" her rejection is not final, for 
here the power vested in her is not confined 
to the place or situation where it is delegated, 
on which account she is at liberty to use it 
either there or elsewhere, because the terms 
when and whenever are used with reference 
to all times, and extend to every time indis- 
criminately, and hence the sense of the ex- 
pressions, "when you please," and "when- 
ever you please," is "at whatever time you 
please," and they are, therefore, not confined 
to place. And if the woman reject at pre- 
sent, still it is not a final rejection, because 
her husband has empowered her to divorce 
herself at whatever time she pleases, where- 
fore the power does not apply t:> the time 
when she does not please. --But it is to be 
observed that /.he woman is not it this case 
authorized to pronounce upon herself more 
than one divorce, because the words when 
and whenever apply to all times, but not to 
more than a single divorce ; thus she is 
authorized to divorce herself at whatever 
time she pleases, but not to pronounce divorce 
as often as she pleases. 

IF a man say to his wife, "you are divorced 
as often as you please," she is at liberty to 
divorce herself time after time, until three 
divorces, because the expression "as often" 
admits a repetition of the act : but it is to 
be observed that this suspension of divorce 
upon the woman's will is restricted solely to 
the marriage at present existing, and does 
not exend to that which may afterwards 
occur ; and hence, if the woman give herself 
three divorces, and be again married to the 
same man, after being rendered lawful to 
him, and then pronounce divorce upon her- 
self, it does not take place, because a mar- 
riage has then occurred de novo ; and it is 
also to be remarked that the woman is not at 
liberty to pronounce the three divorces upon 
herself in one sentence, because the expres- 
sion "as often as," implies unity, and does 
not admit of the circumstances to which it 
relates being taken collectively, and hence it 
is lawful for the woman to pronounce"three 
divorces upon herself at three separate times, 
but not at once. 

But not when it is expressed with an unre- 
stricted particle in respect to place. IF a man 



DIVORCE. 



[VoL. I. 



say to his wife, "you arc divorced wherever 
you please," yet the woman cannot divorce 
herself but in that place ; and if she rise from 
her place before she pronounce it, her will is 
nbt regarded afterwards, because the words 
wherever, or whatsoever, are adverbs of 
place, and divorce has no connexion with 
place ; the word wherever is therefore nuga- 
tory, and the will only remains, which is 
confined to the precise place, contrary to the 
case of time (that is, where the husband says, 
"when you please"), to which divorce has a 
relation, as it may take place at one time and 
not at another, and hence the mention of 
time in divorce is regarded, whether it be 
particular, as "you are divorced to-morrow;" 
or general, as "you are divorced when you 
please." 

IF a man say to his wife, "you are divorced 
how you please." and she remain silent, a 
divorce reversible takes place, whether she 
be desirous or not : or, if she break silence, 
and say, "I am desirous of one divorce re- 
versible," and the husband reply, "such also 
is my desire," divorce takes place accord- 
ingly, because a conformity is established 
between the will of the wife and the inten- 
tion of the husband ; but where the wife 
desires three divorces, and the husband only 
one divorce irreversible, or the contrary, a 
divorce reversible takes place, because her 
act is rendered nugatory by the non- con- 
formity of her will with that of her husband, 
and his words (viz. "you are divorced"), re- 
main, which are effective of a divorce rever- 
sible : but if the husband have no particular 
intention, the will of the wife* alone is re- 
garded, insomuch that, whether she desire three 
divorces, or only one irreversible divorce, it 
takes place accordingly, in the opinion of our 
modern doctors, as this is what a right of 
op-ion requires, The compiler of the Hedaya 
ooserves that Mohammed, in the Mabsopt, 
says that the taking place of one divorce in- 
dependent of the will of the wife, as above, is 
the doctrine of Haneefa ; but that, with the 
two disciples, divorce does not take place so 
long as the woman does not divorce herself ; 
thus she has her option of either one divorce 
reversible or irreversible, or of three divorces : 
and the tame difference of opinion subsists 
with respect to manumission ; that is to say, 
if a master say to his slave, "you are emanci- 
pated how you please," the slave is free upon 
the instant, according to Haneefa ; whereas, 
according to the two disciples, he is not free, 
so long as he is not desirous of being so. The 
argument of the latter is that the husband 
has delegated to his wife a* power to effect 
divorce upon herself under whatever descrip- 
tion she pleases, whether a single divorce re- 
versible or irreversible, or three divorces ; 
and hence it is indispensibly requisite that 
the divorce itself be also suspended upon her 
will, sp that a will shall be confimed to her 
in all circumstances that is, both before 
carnal connexion and after it ; for, if the 
dm>rce itself were not suspended upon the 
will of the wife, it would follow that the wife 



could have no will with respect to the 
description of the divorce before carnal con- 
nexion, as before consummation she cannot 
give herself three divorces, since in such case 
the wife becomes irreversibly repudiated by 
a single divorce before the passing of her 
Edit, and no longer remains a subject of 
divorce. The argument of Haneefa is that 
the word "how" implies a requisition of 
description ; now delegation of the descrip- 
tion of a thing requires the existence of the 
subject of it, and divorce cannot have 
existence but by taking place. 

IF a man say to his wife, "you are divorced 
by as many as you please," or 'by what you 
please," she is empowered to divorce herself 
by whatever number she pleases, as the ex- 
pression as many as and what are used with 
relation to number ; and hence the husband 
appears to have delegated a power to the 
woman with respect to whatever number she 
may approve. If, however, she rise from her 
place before pronouncing any divorce the 
delegation is void ; or, if she reject, her rejec- 
tion is final, because this sort of singular 
delegation does not argue or admit a repeti- 
tion of the act ; and the address implying a 
thing required to be immediately determined 
upon, consequently demands an immediate 
answer. 

IF a man say to his wife, "divorce yourself 
what you please, out of three," she is em- 
powered to give herself one or two divorces, 
but not three, according to Haneefa. The 
two disciples, on the contrary, maintain that 
she may give herself three divorces, if so in- 
clined. The arguments on both sides arc 
drawn from the Arabic. 



CHAPTER IV. 

OF .DIVORCE BY YAMEEN OR CONDITIONAL 
r VOW. 

Definition of the term Yameen with respect 
to divorce- BY Yameen is here understood 
the suspension of divorce upon a circumstance 
which bears the property of a condition, and 
this suspension is termed Yameen, because 
Yameen, in its primitive sense, signifies 
strength or power ; and the suspension is a 
motive to the suspender to be strong in the 
avoidance of the condition in such a manner 
that he may not be subjected to the conse- 
quence or penalty, which is divorce or manu- 
mission. 

Divorce pronounced with a reference to a 
future marriage, takes place upon the occur- 
ence of such marriage. WHERE a man re- 
fers of annexes divorce to marriage (that is, 
suspends it upon marriage), by saying to any 
strange woman, **if I marry you, you are 
divorced," or by deciding "any woman 
whom I may marry is divorced," in this case 
divorce takes place on the event of such mar- 
riage Shafei maintains that divorce does 
not take place, the Prophet having said that 



BOOK IV. CHAP. IV.] 



DIVORCE 



95 



there is no divorce antecedent to marriage. 
The argument of our doctors is that the 
annexing of divorce to marriage is a Yameen, 
or suspension, as appears from its containing 
a condition and a consequence, and present 
authority is not requisite to its propriety, 
because the divorce does not take place until 
the occurrence of the condition, at vxhich 
time the authority necessarily takes place ; 
and the end which it answers, before the 
occurrence of the condition, is, that it re- 
strains the yower from marrying that woman, 
as his meaning in the expression is, "I will 
not marry you, or, if I do, you are divorced." 
With respect to the saying of the Prophet 
cited by Shafei, it goes to the prohibition of 
immediate divorce only, and not of that 
which is suspended upon the occurrence of a 
future oossibl*' event. 

Or upon the occurrence of any other cir- 
cumstance on whxh it may be conditionally 
suspended. IF a man annex divorce to a 
condition specified, by saying to his wife, "if 
you enter this house you are under divorce," 
the divoce takes place upon the occurrence 
of the condition. This is universally ad- 
mitted by the learned, because of the exis- 
tc-ce cf the matrimoniil authority, at the 
time of the husband's declaration ; and it is 
evident that this declaration remains in force 
until the condition be accomplished. 

Provided it be pronounced during an actual , 
or with reference to an event ual, possession 
of authority BUT the annexing of divorce 
to marriage is not lawful, unless the vower 
be either authorized at the time, or annex 
divorce to a future possession of authority ; 
as it is indispensably requisite that the 
penalty be a thing of probable occurrence, 
in order that the apprehension of it may 
operate upon the fears of the vower, and that 
thus the property of Yameen (viz. restraint 
from the apprehension of penalty), do really 
exist at the time of declaring the condition, 
in virtue either of present authority, or of a 
reference to a future authority, 

OBJECTION What is now said appears to 
contradict the doctrine advanced in the pre- 
ceding case, of a man annexing divorce to 
marriage, by saying to a strange woman, "if 
I marry you, you are divorced," for in that 
case he is neither in present authority, nor 
does he annex divorce to the future posses- 
sion of it. 

REPLY. Although he does not annex the 
divorce to an existing right, yet he annexes 
it to the cause of a right which may exist, 
(namely, marriage 41 ), and annexation to the 
cause is the same as to the right itself, be- 
cause in the former the latter is involved. 
But if a man say to a strange woman, "if 
you enter such an house you are divorced," 
and he afterwards marry her, and she then 
enter the said house, divorce does not take 
place, because in this case, he is neither in- 
vested with any present right, nor does he 



Marriage being the cause of the right to 
divorce. 



annex the divorce either or a future right or 
to the cause thereof. 

Five conditional pat tides of various effect. 
THE coditional particles are as follows, 
viz .: "if," "when," "whenever," "when- 
soever," and "as often as," Of these the 
parti *li "if" is solely conditional ; in the 
use of the others condition is implied. And 
under the four first of these expressions, 
upon the condition being fulfilled, the Ya- 
meen, or vow, is completed, and no longer 
exists ; that is to say, if the condition should 
again occur, the penalty is not incurred a 
second time, because the words above men- 
tioned do not involve all future acts of the 
kind expressed in the condition, nor do they 
demand a repetition of the penalty ; and 
hence, whvre the act . hich constitutes the 
condit ion is once found to occur, the condition 
is fulfilled, and no longer remains ; and the 
vow docs not continue in force without the 
condition; but from this rule must be ex- 
ccpted the expression "as often as," which 
applies universally, and such being the case, 
it is requisite that the penalty be repeatedly 
incurred : in every case, therefore, where 
divorce is the penalty derived from the use 
of "as often as," it ref eatedly takes place 
uf on the recurrence of the condition. 

IF a man say to his wife, "you are divorced 
as often as you enter, the house," and she 
enter it three times, and then marry another 
man, and afterwards again marry her first 
husband, and the condition should then 
occur, divorce does not take place, as no 
penalty remains on account of its having 
been completely incurred in the three 
divorces which .followed the repetition of 
this act in the first marriage ; and as the 
continuance of a Yameen, or conditional 
vow, depends upon the continuance of the 
condition and the penalty, when these no 
longer remain the vow discontinues also. 

IF the words "as often as" be introduced 
"in reference to marriage, by a man saying, 
"as often as I marry any woman she is 
divorced," divorce takes place upon every 
instance of his marrying afterwards, though 
he should marry the woman a second time, 
after her having been in the interim married 
to another, because here the penalty is re- 
ferred to the power he possesses of divorce, 
which is a consequence of marriage ; and as 
this power is not restricted to any particular 
instance, but invariably accompanies every 
marriage, it follows that the penalty must 
take place upon every occurrence of the con- 
dition. 

A conditional vow of divorce is not an- 
nulled by the yttinction of property. A 
CONDITIONAL vow of divorce is not annulled 
by the extinction of the right ; that is, if a 
man say to his wife, "you are divorced, 
when you enter this house," and the after- 
wards give her one or two divorces, and her 
Edit be completed, the force of the vow still 
continues under the extinction of rigjit oc- 
casioned by such divorce ; because the con- 
dition specified, namely, her entrance into 



DIVORCE. 



[VOL. I. 



the house, has not yet been accomplished, 
and therefore still continues to exist ; and 
the penalty remains, because of the continu- 
ance of its subject j wherefore the vow also 
continues : thus, if the condition take place 
during the existence of right, the vow is ac- 
complished and divorce takes place, because 
of the occurrence of the condition, and be- 
cause the subject is liable to the penalty ; 
and if it occur under the extinction of right, 
as above, the vow is done away, on account 
of the condition having occurred : but no 
divorce takes place, because in this case the 
woman is not a subject of divorce ; for a sub- 
ject of divorce is a uoman who is a property 
according to the right of marriage 

Case of a dispute between the patties con- 
cerning the occurrence of the condition. If 
a husband and wife differ concerning the 
condition, the former ascerting tr at it had no* 
yet occurred, and the latter that it had, the 
declaration of the husband is to be credited, 
unless the woman produce proof in support 
of her allegation, because the husband is as 
the defendant, denying the existence of di- 
vorce, and the consequent extinction of his 
richt ; whereas the wife is as the plaintiff, 
affirming it. This relates to a case where 
the condition is of such a nature that its oc- 
currence may be ascertained by other means 
than by the testimony of the wife herself; 
but if it be of such nature that no evidence 
but her own is competent to the ascertaining 
of the condition, her declaration is to be 
credited in preference to that of her husband 
This, however, holds with respect to herself 
only, and not with respect to any other 
woman; for if a man say to his wife, "upon 
the coming on of your courses you are 
divorced, and also such an one my other 
wife," and the woman afterwards declare her 
menstruation to have commenced, divorce 
takes place upon her only, and not upon the 
other wife. This proceeds upon a favourable 
construction. Analogy would suggest that 
divorce does not take place upon her either, 
because she is in this case in the character 
of plaintiff, affirming the occurrence of the 
Condition, and the consequent divorce, and 
the husband is as the defendant, denying ; 
and the declaration of a plaintiff is not to be 
credited but upon proof ; but the reason for 
the more favourable construction of the law 
in this instance is that the woman is in- 
quisitor with respect to herself, as oc- 
currence of her courses cannot be known but 
through her ; and hence her declaration is 
credited on this occasion as well as in cases 
of Edit, or carnal conjunction ; that is to 
say, if a woman, having been divorced, should 
declare that "her Edit having passed, she 
had then been married to a man, who hav- 
ing duly consummated, had then divorced 
her, and that her Edit from that husband 
had also elapsed/' this her declaration is 
credited, so as to render her lawful in mar- 
riage to her first hushand ; and in the same 
manner the declaration of the wife is credited 
with respect to herself in the present instance ; 



but it is not so with respect to the other wife* 
because this one is only in the character of a 
witness with resoect to the other, and the 
declaration of a single witness is not to be 
credited, especially where she is liable to 
suspicion, which must be the case in the 
present instance, on account of the enmity 
subsisting between her and the other, from 
the latter being her Zirra, or fellow wife ; 
whence her declaration respecting such an 
one is not credited. 

In the same manner, if a man say to his 
wife, "if you be desirous that GOD should 
torment you with hell fire, you are divorced, 
and this my slave to fiee," and she reply, "I 
am desirous of such torment," or if he should 
say, "if you love me you are under divorce, 
and this my other wife along with you," and 
she reply, "I love you," in both cases divorce 
takes place upon the woman who is addressed 
in these terms ; but the slave is not eman- 
cipated in the former instance, nor is the 
fellow- wife repudiated in the latter, for the 
reasons mentioned in the proceeding case. 

OBJECTION. It would appear that divorce 
ought not to take place in the former of these 
instances, as the falsehood of the woman's 
reply is evident, since no one can be supposed 
desirous of hell fire. 

REPLY. The falsehood is not certain, as 
it is possible that her hatred of her husband 
may be sufficiently violent to induce her to 
wish for a release from him at the expense 
even of infernat torments. But notwith- 
standing that the penalty (to wit, divorce) 
be annexed to her reply, with respect to this 
woman, although she speak falsely, yet 
with respect to the other person who is 
named, divorce or manumission are not so 
annexed, and consequently that person is 
unaffected by it. 

Rule in case of divorce suspended upon the 
courses If a husband suspend divorce upon 
the coming of his wife's courses, saying, 
"upon th coming of your courses you are 
divorced," and she afterwards perceive the 
sign* of the menstrual discharge, the divorce 
does not take place until the discharge shall 
have continued for three days, as that which 
terminate within a less time is not a regular 
discharge ; but where the discharge has con- 
tinued for three days, divorce is decreed 
from the period of its commencement. 

BUT if a man say to his wife, "you are 
divorced upon one term of your courses," 
she is not repudiated until she become clean 
from her next succeeding courses, and her 
Tohr, or term of purity, arrive ; because 
by one term of the courses is to be under* 
stood a complete menstruation, and men- 
struation is not complete until and return 
of the term of purity. 

AND if he say to her, "you are divorced 
when you fast a day," she becomes divorced 
on the sunset of the first day on which are 
fasts : but if he only say, r "you are divorced 
when you fast," her divorce takes place from 
the first time that she begins a fast . The 
proofs are drawn on this occasion from the 



BOOK IV. CHAP. IV ] 



DIVORCE 



97 



term of those expressions in the original 
idiom. 

IF a man say to his pregnant wife, "if you 
bring forth a male child you are divorced 
once, and if a female, twice," and she should 
happen to produce twins, a son and a daughter, 
and it be unknown which of them was first 
born, the Kazee is here to decree a single 
divorce ; but caution dictates that it be 
regarded as two divorces In this case the 
woman's Edit, or term of probation, is 
accomplished by her delivery ; for if she 
brought forth the son first, a single divorce 
would I take place, and her Edit would be ac- 
complished by the birth of the daughter, 
after which no other divorce could take place 
on account of the birth of the latter, as the 
accomplishment of the mother's Edit includes 
a complete dissolution of her marriage, under 
which divorce cannot take place ; and, on 
the other hand, if she brought forth the 
daughter first, two divorces take place, and 
her Edit is accomplished by the birth of the 
son, after which no other divorce could take 
place, for the same reason ; hence, in the 
first instance, one divorce only would take 
place, and in the second two divorces ; but 
in the present case the second divorce is 
not decreed, on account of tlu> doubt 'in 
which the matter is involved ; yet (us was 
already observed) caution dictates that 
this he considered as amounting to two 
divorces. 

Casi of divcrce suspended upon acts 
which admit of frequent repetition. * IF 
a man say to his wife, "if you converse with 
Zeyd and Amroo, you are under three di- 
vorces," and he afterwards give her a single 
divorce, and she become separated by the 
accomplishment of her Edit, and she then 
converse with Zeyd, and afterwards again 
marry her former husband, and then converse 
again with Amroo, she falls under two di- 
vorces together with the first In* all three 
divorces, Ziffer maintains that on this "oc- 
casion no divorce whatever takes pla*ce. 
This case may be considered in four different 
views : FIRST, where both the conditions 
appear, to wit, converse with both Zeyd and 
Amroo within marriage, in which case di- 
vorce would follow evidently ; SECONDLY, 
where both conditions appear without mar- 
riage, in which case divorce does not take 
place, the reason of which is also evident ; 
THIRDLY, where the first condition exists 

In this and the succeeding passages a mat- 
ter must be adverted to which it is necessary 
to understand, in order that their sense may 
be fully comprehended. When a - man pro- 
nounces two or three conditional divorces, 
these remain so far in force that they recur 
upon the recurrence of the condition, even 
after an intervening marriage ; but any di- 
vorce by which tha* marriage may have been 
dissolved is then counted in with that which 
thus recurs upon the recurrence of the con- 
dition 



wilhin marriage and the second without,* 
in which case likewise divorce does i.ot take 
place, as that penalty cannot follow without the 
existence of the n arriage ; and, FOURTHLY, 
where the first condition exists without the 
marrnge. and the second within itf ; and 
this is the case concerning which Ziffer differs 
from our doctors. The argument of Ziffer is, 
that as the existence of marriage is condi- 
tional to the divorce taking place at the time 
of the occurrence of the last condition, so it 
is in the same manner conditional at the time 
of the occurrence of the first condition, be- 
cause they arc both (with respect to the rule 
of divorce) as one thing, since that divorce 
cannot possibly take place without the con- 
currence of both of them. To this our doctors 
reply that the case now under consideration 
is a vow, which, being an act affecting the 
maker of it, rests upon his competency ; now 
the existence of marriage, at the period of 
suspension (that it, of making the vow), is 
maJe conditional, in order that the penalty 
may to a certainty ensue at the period of the 
conditions specified taking place : and, in the 
present case, marriage actually existing at 
the period of suspension, the vow holds good : 
and the existence of marriage is also rendered 
conditional at the time of the condition being 
completely fulfilled, in order that the penalty 
may take place within marriage ; because 
this penalty is divorce, which cannot take 
place but within marriage ; but, in the pre- 
sent case, the time of the occurrence of the 
first condition is neither a period within 
which the vow has any force, nor in which 
the penalty can take place ; wherefore that 
interval is considered merely as the time 
of the continuance of the vow, to which 
the existence of marriage is not abso- 
lutely necessary, as it depends upon the 
vower, a vow being an act peculiarly 
affecting the maker of it, as was already 
remtrked. 

Case of a man first procuring a conditional 
divorces, and then repudiating his wife by two 
express divorces. J If a man say to his wife, 
"if you enter this house you are under three 
divorces," and he afterwards repudiate her 
by two express divorces ; and her Edit be 
fulfilled, and she be afterwards married to 
another man, and he have carnal connexion 
with her, and divorce her, and she be then 



That is to say, where the first occurs 
within the first marriage and the second in- 
termediately between the dissolution of that 
and the commencement of the second mar- 
riage. 

fThat is to say, where the first occurs 
intermediately between the dissolution of the 
first marriage, and the commencement of the 
second, and the second within the second 
marriage. 

I This and the following are termed cases 
of obliteration. They are jmore fully treated 
of under the article Aila. 



98 



DIVORCE 



[VOL.1. 



married to her first husband, and after 
that enter the said house, three divorces 
take place upon her, according to the two 
Elders.* Mohammed says that no more can 
take effect upon her than the one divorce 
remaining after the two which she had 
already received, as above ; and such also 
is the opinion of Ziffer. The foundation of 
this difference, in point of doctrine, is that the 
two divorces are held, by the Elders, to have 
been entirely annihilated by the circum- 
' stances of the intervening marriage, and 
hence the first husband still continues em- 
powered with respect to the three divorces 
[conditionally declared as above] upon the 
woman returning to him ; contrary to Mo- 
hammed and Ziffer, who hold that they are 
not annihilated, and therefore that in such 
event he continues empowered only with 
respect to the remainder of the three (as 
shall be hereafter explained). The effect of 
this difference of opinion appears in a case 
where a husband, having suspended one 
divorce upon the circumstance of hii wife's 
entering a certain house, after wads repu- 
diates her by two divorces, and the woman, 
after having married another man, returns 
to her first husband, and then enters the 
house, in which case she falls under the rigor- 
ous prohibition, according to Mohammed, the 
two former divorces not having been annihi- 
lated by the intermediate marriage ; but, in 
the opinion of the two Elders, she does not 
fall under the rigorous prohibition, as they 
conceive the two former divorces to have 
been annihilated. 

Or by three express divorces. IF a man 
say to his wife, "you are under three divorces 
if you enter this house," and he afterwards 
repudiate her by three express divorces and 
she marry another man upon the expiration 
of her Edit, and after being divorced by him, 
be again married to her former husband, 
and then enter the said house, no effect what- 
ever ensue* Ziffer says that three divorces 
take place, -because three divorces are sus- 
pended generally upon the condition, whether 
in virtue of the right from the present exist- 
ing marriage, or of that which recurs after 
the intervening marriage with another ; and 
the expression is general, and not restrictive ; 
hence, therefore, the occurrence of the three 
suspended divorces may stili be conceived 
possible after the three divorces before given ; 
for which reason the vow also continues in 
force, as the permanence of that is implied 
in the possiblity of such occurrence. The 
argument of our doctors is that the penalty 
does not consist of three divorces generally, 
but of the three suspended divorces, with 
respect to which the husband is authorized, 
in virtue of the present existence of marriage, 
because he has imposed the vo w upon him- 
self for the purpose of determent, and it is 
only the three divorces therein mentioned 
which ,can operate in that way, not those 



Haneefa and Aboo Yoosaf, 



with respect to which he may be authorized 
by a subsequent marriage, an event the oc- 
currence of which is not probable, the chances 
being so much against it ,* and the penalty 
consisting of those three particular divorces 
being done away by the three divorces (in 
consequence of which the subject of divorce 
no longer remains), the vow is also done 
away : but it would be otherwise if, after a 
vow expressed as above, the husband were 
to repudiate his wife by a single irreversible 
divorce, for there the vow remains in force, 
because of the permanence of its subject.* 

Case of divorce suspended upon carnal 
connexion with the wife IF a man say to 
his wife, "when I have carnal connexion, 
with you, you are under three divorces," and 
he afterwards have carnal kowledge of 
her, divorce takes place upon the instant of 
such carnal connexion taking place ; and 
here, although he should not immediately 
cease such connexion, yet he does not be- 
come liable for either a finef or a proper 
dower ; but the fine or dower becomes obliga- 
tory upon him if, after the shortest cessation, 
he should again have carnal connexion with 
her. This is analogous to a vow made with 
respect to a female slave ; for if a master say 
to his female slave, "when I have carnal 
connexion with you, you are free," and he 
afterwards have carnal knowledge of her, 
she is emancipated on the instant of such 
connexion ; yet she has no claim to a fine, 
although he should not immediately cease ; 
but if, after a cessation, he again renew the 
connexion, she has then a claim to a fine. 
This is the doctrine of the Zahir Rawayet 
It is recorded from Aboo Yoosaf that a fine 
is due where he delays, although he should 
not entirely retreat and again renew the 
connexion, because this amounts to carnal 
conjunction after divorce or emancipation, on 
account of his continuing the act ; but 
punishment is not due, .since the whole is 
only one act, in which, Irs 'the commencement 
affords no cause for punishment, so neither 
is punishment incurred by the accomplish- 
ment of it ; but yet the fine is incumbent, 
as the commission of the carnal act upon a 
prohibited subject cannot be free from both 
punishment and fine. The grounds on which 
the Zahir Rawayet determines in this case, 
is that by Jama [the carnal act] is under- 
stood the commencement of the act : and 
continuation is not commencement ; where- 
fore carnal connexion de novo is not im- 
plied ; contrary to a case of cessation and 
renewal, because in that case the connexion 
takes place after divorce ; but yet, even in 
this instance, punishment is not incurred; 
on account of the doubt occasioned by the 
unity of place and of passion j but such 

The subject still remains, because, after 
a single divorce, a wife* continues a legal 
subject of two other divorces, until the ex- 
piration of her Edit. 

t Mean ing the Akir, or fine of trespass. 



BO.IK IV. CHVP V] 



DIVORCE. 



99 



being the case, the fine is incumbent, as the 
commission of the carnal act upon a pro- 
hibited subject cannot be free both from 
punishment aad fine. 

IF moreover, in the case now recited, the 
husband had suspended a reversible decree 
upon his com mission of the carnal act, the 
divorce is virtually reversed by his d lay, 
agreeably to A boo Yoosaf ; but if he cease 
and again renew, it is then reversed, accord- 
ing to all the doctors. 

Section 

Of Istisna : that is, Reservation or Exception 
Divorce, with a reservation of the will of 
God des not take place. IF a man say to 
his wife, you are divorced (adding) if it 
please God" without any stop between, di- 
vorce does not take place, because the Pro- 
phet has said, "where a man makes a vow 
of divorce or manumission, saying, IF IT 
PLEASE GOD, he cannot be forsworn ;" and 
also, because the husband has here intro- 
duced the words "if it please GOD," in the 
form of a condition, and hence the divorce is 
suspended upon the will of GOD, and does not 
take place until the occurrence of the condi- 
tion : but the will of GOD, not being known, 
nothing can be decreed which is suspended 
upon it. And here, as the suspension de- 
stroys the effect of the preceding words, it is 
a condition that the same follow then con- 
nectedly, and without pause, as in other 
similar cases : and the words "if it please 
GOD," are here said to be introduced in the 
form of a condition, because they are not 
actually conditional, as by a condition is un- 
derstood a thing not at present existing, but 
the future occurrence of which is conceiv- 
able ; wherefore a thing now existing cannot 
be termed a condition ; nor a thing the exis- 
tence of which is impossible ; and the will of 
GOD is of one or other of these descriptions. 

Unless it be pronounced with a paitse 
between the divorce and the reservation. 
WHAT is here said proceeds upon a supposi- 
tion that the words, "if it please GOD," fol- 
low the preceding words immediately, and 
without separation, by a pause; but if the 
man should first say, "you are divorced." 
and remain a moment or two silent, and then 
say, "if it please GOD," the virtue of the 
former words is established, beca use in that 
case the additional words come in as a 
retraction from the first words which is not 
held legal. 

IF a man say to his wife, "you are di- 
vorced, if it please GOD/' and she die before 
the utterance of the latter words, divorce 
does not take place, because on account of 
the reservation, "if it please GOD/' the 
words preceding do not stand or operate as a 
desire expressed. 

OBJECTION.- As death prevents divorce, 
that is to say, as if is on account of death 
that divorce cannot take place, it follows that 
the same circumstance in the present case 
precludes the words, "if it please GOD/' and 
thereby prevents them from operating to 



annul the first words in their effect, and thus 
it would appear that on account of ihe 
woman's dying as above, the divorce should 
take place upon her, she not having expired 
until after the words, "you are divorced," 
and before the utterance of the reservation, 
"if it please GOD. 

REPLY. Death operates to the prevention 
of divorce on account of its cutting off the 
subject of it ; but it dees not prevent the 
effect of the reservation in the present case, 
as the validity of reservation depends up:>n 
that of the declaration, which rests upon the 
husband, who is still living : but it would be 
otherwise if he should die before having 
uttered the reservation, as in that case it Is 
not added to the preceding words. 

Divorce pronounced with an exception in 
point of number takes place accordingly. 
Ir a man say to his wife, "you are under three 
divorces all but one," two divorces, take place; 
and if he say, "all but two," one divorce 
takes place ; for it is a rule that this figure 
of speech termed Istisna, is expressive of a 
remainder from the whole of a given number 
from which an exception is made ; and Urn 
is approved, because there is no difference 
whatever between a man's saying (for ^ ex- 
ample), "I owe such an one nine Dirms," or, 
"I owe such an one ten Dirms all but one ;" 
wherefore this mode of speaking by the ex- 
ception of a part from the whole is approved, 
because it amounts to a mention, simply, of 
what remains after the exception is made, as 
in the present instance. 

BUT the exception of the whole from the 
whole is disapproved, since, after exception 
of the whole, nothing whatever remains the 
mention of which might be established ; and 
hence, if a man say to his wife," you are 
under three divorces all but three, the thrci 
divorces take place upon her, because the 
exception of a whole from a whole is nuga- 
tory, and therefore not admitted to have any 
effect. 

AND here, as m the preceding cases, the 
exeception is of no effect, unless it be im- 
mediately connected with what goes before 
namely, the sentence of divorce. 



CHAPTER V. 

OF THE DIVORCE OF THE SICK.* 

A wife divorced by a dying husband in- 
herits if he die before the expiration of her 
Edit. IF a man lyjug on his death- bed, re- 



By the Mussulman law, a woman, on the 
death of her husband, is entitled to an in- 
heritance from his estate ; but it is possible 
that the husband may sometimes be induced, 
from personal dislike, or other motive, where 
he finds himself dying, to repudiate his wife, 
in order to exclude her from her right iff in- 
heritance, in the event of his death ; an in- 
justice which the rules and cautions 



100 



DIVOR 



[VOL. I. 



pud i ate his wife either by one irreversible 
divorce, or by three divorces, and die before 
the expiration of her Edit, she is still e.i 
titled to her inheritance from his estate : but 
if he should not die until after the accom- 
plishment of her Edit, she has no claim. 
Shafei maintains that she is not an inheri- 
tress in either case, as the matrimonial con- 
nexion, which was the cause of her inheri- 
tance, is dissolved by the divorce ; whence it 
is that if this man were to repudiate his wife 
by an irreversible divorce, and she were to die 
within her Edit, before the decease of her 
husband, the husband does not inherit of her, 
the matrimonial connexion which was the 
cause of that relationship which entitled to 
inheritance no longer remaining. To this 
our doctors reply that the matrimonial con- 
nexion at a time of a mortal illness is a cause 
of inheritance with respect to the wife : but 
where the husband is desirous of defeating 
this right by giving an irreversible divorce, 
his intention is resisted, by postponing the 
effect of his sentence of divorce to the expi- 
ration of his wife's Edit, in order to shield 
her from injury ; and such procrastination .s 
possible, as a marriage is accounted still to 
subsist during the Edit, with respect to vari 
ousofits effects, such as the obligations of 
alimony, residence, and so forth : and hence 
it may lawfully be accounted to continue in 
force with respect to the woman's inheritance; 
but, as soon as the Edit is accomplished, a 
further procrastination is impossible, because 
the marriage does not then continue in any 
shape whatever. The case, however, is very 
different where the wife happens to die be- 
fore her husband (as mentioned by Shafei), 
for in this instance the connubial connexion 
is not a cause of inheritance in the husband 
(in virtue of h's right as connected with her 
property), because she was not sick but in 
health at the time of his pronouncing divorce 
and the connexion is dissolved with respect 
to his right; especially where he himself 
manifests his desire that it should be so, by 
pronouncing upon her an irreversible di- 
vorce ; since as the connexion would be dis- 
solved though he were not desirous of the 
annulment of his right, it follows that it is 
so where he is desirous, a fortiori. The 
mode in which the connexion may be dis- 
solved without the consent of the husband is 
by the wife, upon her death- bed, admitting 
the son of her husband to carnal connexion 
and dying within her Edit, in which case the 
husband would not inherit of her. the matri- 
monial connexion with respect to him becom- 
ing null, notwithstanding he r does not consent 
to such annulment. 

Unless she be divorced at her own request, 
or by her own option, or for a comp^nsa 

down in this chapter are intended to coun- 
teract and guard against ; some of them are 
also designed to counteract any fraudulent 
collusion between the wife and her dying 
dtpbanh, to the prejudice of his heirs. 



tion. IF a woman require her husband, 
who is sick, to repudiate her by an irre- 
versible divorce, and he accordingly pro- 
nounce the same upon her, or, if he desire 
her to choose, and she choose herself, -or, if 
she procure divorce of him in the manner of 
Khoola, that is, for a compensation, and he 
afterwards die before the expiration of her 
Edit, she does not inherit of him, because 
the only reason for postponing the effect of 
the divorce is a legard for her right, to the 
destruction of which she in this case con- 
sents. But if she require him to repudiate 
her by a reversible divorce, and he pro- 
nounce three divorces upon her, she inherits, 
because a reversible divorce does not dis- 
solve the marriage ; and hence her requisi- 
tion of such a divorce does not imply her 
consent to the destruction of her right. 

In case of any possible collusion between 
the parties, by the husband, after a declared 
divorce, acknowledging himself indebted to 
her, or bequeathing her a legacy t she receives 
whatever may be of least value, inheritance, 
debt, or legacy IF a man, upon his death- 
bed, declare that he had repudiated his wife 
by three divorces, at such a time, during 
health, that her Edit had passed, and she 
confirm this, and he afterwards make an ac- 
knowledgment of his being indebted to her 
in a certain sum, or bequeath her a legacy, 
she will, in the event of his decease, be en- 
titled to that sum of the three which is the 
least, the legacy, the debt, or her proper in- 
heritance : that is to say, if her heritance 
be of smaller amount than the debt or the 
legacy, it goes to her, and so of the others. 
This is the doctrine of Haneefa. The two 
disciples say that the acknowledgment or be- 
quest are either of them legal, and therefore 
that the woman is entitled either to the 
whole of the acknowledged debt, or to the 
entire legacy (provided that does not exceed 
the third; or devisable proportion of his 
pro'pertylj, as the case maybe. And if the 
husband; in conformity with the requisition 
of his wife, pronounce three divorces upon 
her on his death-bed, and afterward acknow- 
ledge himself indebted to her in a certain 
sum, or bequeath her a legacy, she is in this 
case entitled to whatever is of least value, 
the debt, the legacy, or the inheritance, ac- 
cording to all, except Ziffer, who says that 
she is entitled to the whole bequest (not 
exceeding the third of property), or to 
the whole of the debt acknowledged, because 
her right to inheritance being annulled by 
her requisition of divorce, the obstruction 
to the legality of the acknowledgment or 
bequest (namely, the matrimonial con- 
nexion), is removed. The argument of the 
disciples, with respect to the former case, is 
that when the husband and wife agree re- 
specting his having divorced her, and her 



This, which is termed Sils Mai, is fully 
explained in the Book of Wills, Vol. IV. 



BOOK IV. CHAP. V.] 



DIVORCE. 



101 



Edit having passed, she from that period be- 
comes a stranger to him, and he no longer 
remains liable to suspicion (that is to say, 
in the present case, suspicion of his prefer- 
ring her before his other heirs and giving 
her more than her right, which is inheri- 
tance), whence it is that his evidence to her 
advantage is credited : and it is also lawful 
for him to pay her his Zakat, or to marry 
her sister, or for her to marry another man : 
contrary to the second case, as there the Edit 
still remains unaccomplished, qnd the con- 
tinuance of that affords 5"ounc N ! for such 
suspicion : now the subject of suspicion is a 
circumstance as yet concealed and unknown, 
wherefore the ground for suspicion is re- 
garded, and not the actual fact suspected or 
apprehended; and as the continuance of the 
Edit affords ground of suspicion, the effect 
of suspicion is established, namely, the in- 
validity of acknowledgment, or bequest ; and 
hence also is established the incredibility of 
the evidence of husband or wife respecting 
each other : as well as the incredibility of 
evidence, in respect to relations either by 
blood or by marriage ; since marriage and 
affinity are grounds of suspicion. The agru- 
ment of Haneefa is that suspicion exists in 
either instance ; in the second, because a 
woman may choose divorce, in order to open 
to her the door of acknowledgment, or be- 
quest, so that she may receive more than her 
proper inheritance : and in the first, because 
it may happen that the husband and wife 
may form a collusion, and agree to hold 
forth their separation and the completion of 
her Edit, in order that he may be enabled 
to favour her, by giving her more than her 
just inheritance ; and the suspicion is con- 
firmed where the subsequent acknowledg- 
ment or bequest appears to be of more value 
than the inheritance, on which account it is 
that such excess is rejected, and the rule 
dictates that she shall receive the smallest of 
the three, the debt, the bequest, or the in- 
heritance. It is here to be observed that 
no suspicion exists respecting the proper 
amount of the woman's inheritance, that 
being adjusted in proportion to the whole 
property inherited, according to established 
rules. Neither* are Zakat or evidence sub- 
jects of suspicion, as a husband and wife are 
never known to from a collusion for the 
purpose of enabling him to give her the 
Zakat upon his property, to be bear evidence 
in and matter affecting her. 

Divorce pronounced in a situation of 
danger cuts off the wife ftom her inheri- 
tance, unless the danger be imminent or 
certain. 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 Edit .but if a 
man engaged in fig^t, or a cirminal carrying 
to execution, were in such situation to pro- 
nounce 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 favour- 
able construction of the law ; and his eva- 
sion cannot be established but where her 
right is inseparable connected with his pro- 
perty, which is not the case, unless he be [at 
the time of pronouncing divorce] sick of a 
danqeorus illness (appearing from his being 
confined to his bed, and other symptoms), or 
in such other situation as affords room to 
apprehend his death : but it is not estab- 
lished where he pronounces divorce in a 
situation in which his safety is more probable 
than his destruction : thus, a man who is in 
a fort or town besieged, or one who resides 
in an army, cannot be said to De in any immi- 
nent danger, the former of these situations 
being designed for security against the 
enemy, and the latter to repel his attacks ; 
whereas one engaged in fight, or carrying 
to execution, is in circumstances of immi- 
nent danger : and consequently the evasion 
is established in the latter circumstance, but 
not in the former. There are various cases 
recorded corresponding with these at present 
recited, and which proceed upon the same 
rules. It is to be observed however, that 
what is here said, viz ; "where he dies that 
way, or is slain," shows that there is no 
essential difference between the two cases 
where he dies in the way mentioned, or in 
any other way, the same as a husband con- 
fined to a sick bed, who happens to be 
slain. 

A conditioned divorce pronounced in sicfe- 
ness, does not cut off the wife from her in- 
heritance, unles* the condition be her own act. 
IF a man, being in health, say to his wife, 
"when the first of such a month arrives 
(or) "when your enter this house" (or) 
"when such an one repeats evening prayers 
(or) "when such an one enter this 
house," "you are under divorce/' and the 
thing mentioned take place at a time when 
he is sick, she does not inherit of him : 
but if he were to make such a condition 
upon his death-bed she inherits in all these 
cases except one, namely, "when you enter 
this house." It is to be observed that the 
suspension now treated of are of four dif- 
ferent kinds :FiRST, where divorce is sus- 
pended upon the arrival of a specified time; 
SECONDLY, where it is suspended upon the 
act of a stranger ; THIRDLY, where it is 
suspended upon the act of the husband him- 
self; -and FOURTHLY, where it is suspended 
upon the act of the woman : and each ot 
these again are of two descriptions ; one, 
where the suspension is declared in health, 
and the condition occurs in sickness ; the 
other, where both take place in sickness. 
In the two first instances, namely where the 

Meaning one who endeavours unjustly to 
defraud his wife of her .right, or by son* 
means to deprive her of it, that is ^acconf- 
modatin*the explanation to the tern L used 
in the text), one who .flies from or evadw 
rendering his wife her right. 



102 



DIVORCE. 



[VOL. I. 



husband suspends the divorce upon the 
arrival of a specified time, by saying, "when 
the first of such a month arrives you are 
under divorce/' or where he suspends il 
upon the act of a stranger, by saying, "when 
such an one enters the house," (or)^ "when 
such an one repeats evening prayers/' if the 
suspension and the condition both occur in 
sickness, the woman is entitled to inherit of 
her husband, because his intention here ap- 
pears to be evasion, from the circumstance of 
his suspending divorce at a time when the 
wife's right is inseparably connected with 
his property ; but if the suspension take 
place in health, and the condition in sickness, 
the woman does not inherit of htm. Ziffcr 
says, that in this last case also she inherits 
because whatever is suspended upon a con- 
dition takes place on the occurrence of that 
condition, and is than like the fulfilment of a 
promise ; and also, because in this case di- 
vorce occurs during sickness. The argument 
of our doctors is that the antecedent sus- 
pension induces divorce at the time of the 
occurrence of the condition consequentially, 
but not designedly, and injury is not es- 
tablished but from design ; the act of the 
husband, therefore, is not to be set aside by 
the annulment of its effect, namely, non in- 
heritance. And, in the third instance (that 
is where the husband suspends the divorce 
upon his own act), he is considered as an 
Evader, and the woman inherits of him, 
whether, the suspension take place in health, 
and the condition in sickness, or both occur 
in sickness ; and also, whether the act be of 
ah avoidable or an unavoidable nature : the 
reason of which is, that the husband on this 
occasion evidently designs to defeat his 
wife's right, whether by the suspension, or 
by producing the condition during a mortal 
illness. 

OBJECTION. It would seem that the hus- 
band is not an evader where the condition is 
an act of an unavoidable nature. 

REPLY. In the case now under conside- 
ration, although the act of condition be un- 
avoidable by him, yet it is in his power to 
avoid the suspension of divorce upon that 
act, and hence his act is set aside, in order 
that the woman may not be injured. 

Provided that act be of an avoidable nature. 
AND in the fourth instance (that is, where 
the husband suspends divorce upon an act of 
the wife), if the suspension and condition 
both occur in sickness, and the act be of 
such a nature as may be avoided by the 
woman (such as speaking to Zeyd, for in- 
stance), she does not inherit, ?s she in this 
case consents to divorce : but if the act be 
of a nature unavoidable by her (such as eat- 
ing and drinking, or prayer, or conversing 
with her parents), she is entitled to inherft 
of her husband, as she is compelled to per- 
fqrmance of such acts, since, if she were not 
to per for m them there is fear of her perish- 
ing either in this world or the next ; and 
the consent cannot exist where she acts from 
unavoidable necessity ; but if the suspension 



take place in health, and the condition in 
sickness, and the act be of a nature avoid* 
able by the woman, she does not inherit, for 
evident reasons. And where the act is of an 
unavoidable nature, the rule is the same, 
with Mohammed and Ziffer (that is, she does 
not inherit), because, on this occasion, no 
act appears on the part of the husband, after 
the conexion of the wife's right with his 
property.- With the two Elders, on the con- 
trary, she does inherit, because; 'the husband 
in this case obliges her to the commission ' of 
that act, and for that reason the act becom es 
his own, she being only as his instrument ; 
as in a case of compulsion, a compellee being 
one who is straitened between two things; in 
which predicament the wife here stands, 
since, if she perform the act of condition, 
she sustains the injury of divorce, and if she 
refrain she is in danger of perishing either 
here of hereafter. 

Wher* recovery intervenes between a sick- 
bed divorce and the death of the husband, the 
'wife is cut off from inheritance. IF a man 
pronounce upon his wife three divorces in 
sickness, and afterwards recover his health, 
but happen to die before the expiration of 
her Edit, she does not inherit. Ziffer says 
that she inherits, because the husband in 
this case appears to have intended evasions 
but to this our doctors reply that the sick- 
pess in which divorce was pronounced having 
been removed by the intermediate recovery 
of health, the last sickness which fo'lows, 
is the same as health, whence it apoears that 
her right is not connected with his property- 
and therefore the husband is not an evader 
in divorcing her. 

And so also where her apostacy intervenes. 
IF a sick person pronounce three divorces 
upon his wife, and she afterwards aposta- 
tize from the faith, and again return to it, 
and the husband then die before the expi- 
ratiorvofher Edit; she does not inherit of 
him. t 

But not where her incest intervenes. IF, 
however, she were not to apostatise, but 
should admit the son of her husband to car- 
nal connexion, she inherits, The difference 
between those two cases is, that by apostacy 
her capacity of inheritance is destroyed ; 
whereas, by admitting the son of her hus- 
band to the commission of the carnal act it 
is not so, for although this renders her pro- 
bib ited to her husband, yet it does for- 
bid her competency of inheritance, since pro- 
hibition and inheritance may be united in 
the same person (as, for instance, in a mother 
or a sister), wherefore she inherits in this 
case : but it would be different is she were 
to admit the son of her husband to carnal 
connexion during the existence of mar- 
riage, because separation is the consequence, 
whence it appears that she consents to the 
destruction of the matrimonial connexion, 
which is the occasion of her inheritance, 
whereas, if she admit the son of her husband, 
o carnal connexion after the latter having 
pronounced three divorces upon her, pro- 



OOK IV. CHAP. VI] DIVORCE. 

hibition is not established by that act as it 
had been already established by divorce. 

Divorce occasioned by the the slander of a 
dyin% husband does nit cut off his w fe frow 
her inheritance. IF a man, being in health, 
slander his wife, that h, accuse her of 
adultery, and afterwards mike asseveration 
respecting the sam? on his death-bed, she 
inherits of him. Vfoharmud siys that shj 
does not inherit : but if the slander be also 
declared upon his death bed, sh inherits, 
according to all our doctors The reason of 
this is that the slander amounts to the sus- 
pension of divorce up :>n a thing unavoidable 
by the woman, as it constrains her to oppo- 
sition,* that she may remove from herself 
the scandal of the imputation. 

And so a/so of a deathbed divorce occa- 
sioned by an Aila. IF a man make an 
Aila.f or v >w of abstinence, from his wife, 
during health, and she become divorced, in 
consequence of it when he is upon his death- 
bed, she does not inherit of him ; because 
Aila is a vow of abstinence from carnal con- 
nexion with her for the space of four months, 
which at the end of that period occasions 
divorce, a,nd hence it amounts to a suspen- 
sion of divorce upon the arrival of a spec : fied 
time, being the same as if he had said to her. 
"uoon the lapse of four months, if I have 
not carnal connexion with you within that 
period, you are divorced ;" which was al- 
ready explained. 

Where a death-bed divorce is reversible t the 
wife inherits in every case. IF a man upon 
his death-bed repudiate his wife by a rever- 
sible divorce, she inherits of him in all the 
cases here recited, because the marriage is 
not finally dissolved, since it continues law- 
ful for him to have carnal connexion with 
her ; and such being the case, the principle 
upon which she inherits stands still unim- 
peached. 



103 



NOTE In all these cases where it is aid 
that the wife inherits, it means, "in case of 
the decease of the husband, before the ex- 
piration of her Edit/' the reason of which 
has been already mentioned. 



CHAPTER VI. 

OF RIJAAT, OR RETURNING TO A DIVORCED 
WIFE. 

Definition of Rijaat. RIJAAT in its primi 
tiyc sense means restitution ; in la* it sig 
nifies a husband returning to, or receiving 



*That is to say, forces her to require her 
husband to verify his accusation by a Laan, 
or solemn asseveration, before the magis- 
tarte, which, if he deles so, occasions divorce, 
For a full explanation of this, see Chap. X. 
treating of Laan. 
fSee Chap. VII. 



tnclc, his wife aftir diy>rce. and restoring 
tier to h;r fjr.nsr situation, in which she was 
n >t lia:> i 1 1 se:ur.un r i fron the passing of 
r uojfSis, or ot" chi spa^e of time cor- 
responding with their periods, and which 
she recovers by RijaU ; this is the defini- 
tion of it in the Ja-na R*m>:>z ; from what 
occurs respecting is in the present work, it 
appears simply tomian the continuance of 
marriage. 

A man may return to a wife repudiated by 
one or two reversible a* yore is IF a man give 
his wifj o ic or two divorces reversible, he 
miy take her bic; any tim; before the ex- 
piration of her Edit, whether sh~ be desirous 
or not, GoJ having said in the Koran, "YE 

MAY RS FAINT THEM WITH HUMANITY," Where 

n:> distinction is madi with respect to tlu 
wife's pleasure, or otherwise ; and by the 
word retain is heri unJer-itooi Rtja.it, or 
r turning: to, according to all the commen- 
tators. 

Provided he <i) s\) before the expiration of 
her Edit. THE existence o the Edit is a con- 
dition of Rijiat, b3caus2 by Rijaat is under- 
stood a con'inuanc? of the mirriage (whence 
the term retain is applied to it), and 
this cannot be established but during the 
Edit since after that is past the marriage no 
longer remains. 

Rijaat is of two kinds, express and implied. 
RIJAT is of two species : the FIRST is 
termed express, where the husband says, for 
example, "I have returned to (or taken 
back) my wife, or addresses the same to her 
personally : and the SECOND implied, where 
h* has carnal connexion, or takes conjugal 
liberties with her, such as viewing those parts 
of her which are usually concealed, and so 
forth. This second description of Rijaat is 
according to our doctors. Shafei says that 
the Rijaat is not approved, or regular, but 
where it is expressly pronounced by the hus- 
band (provided he be able to speak), because 
Rijaat stands as a marriage de novo, and 
(according to him) carnal connexion with the 
wife is in this case prohibited, on account of 
its legality having been annulled by the 
divorce, which is a dissolver of marriage, for 
it would appear that the marriage is itself 
dissolved by a divorce, although it be of the 
reversible kind, were it not that the law there 
leaves to the husband an option of Rijaat, 
which is the sole reason why he confines its 
effect to the prohibition of carnal connexion, 
and does not extend it to a dissolution of 
the marriage itself. The argument of our 
doctors is that that by Rijaat is understood a 
continuance of the marriage, as was before 
explained ; and mis may be shown by an act, 
as well as by words, for acts sometimes 
evince continuance, as in the case of abolish- 
ing the option of a seller ; that is to say, in the 
same manner as the abolition of the option of 
a seller (which is the continuance of property) 
is proved by an act, so also in the present 
case ; now acts peculiar to marriage are signs 
of the continuance of it; and the carnal 
connexion, or other acts, as before stated, afre 



104 



DIVORCE. 



[VOL. I. 



peculiar to marriage, especially in the cas 
of free women, since, with respect to them 
they cannot be lawful but through marriage 
and, with respect to female slaves, they ar< 
sometimes lawful by right of marriage, anc 
sometimes by right of possession ; contrary 
to touching, or looking at the pudenda of a 
woman, without lust, because that is some- 
times lawful without marriage, as in the case 
of a physician or midwife ; and the sight of 
other parts than the pudenda sometimes hap- 
pens to people who reside together and ii 
a wife resides with her husband during her 
Edit, if such an accident were to imply 
Rijaat, he might then give her another divorce 
to her injury, as it would protract her Edit. 

The evidence of wit ties* to Rijaat laud- 
able, but not incumbent. IT is laudable that 
the husband have two witnesses to bear 
evidence to his Rijaat ; yet if he have no 
witnesses the Rijaat is nevertheless legal, 
according to one opinion of Shaffi. Malik 
holds that it is not lawful without witnesses, 
GOD having ao commanded, saying, in the 
Koran, "RETAIN THEM WITH HUMANITY, 

OR DISMISS THEM WITH KINDNESS, AND 
TAKE THE EVIDENCE OF TWO WITNESSES OF 
YOUR OWN PEOPLE, AND SUCH AS ARE OF 

JUST REPUTE ;" where, the imperative being 
of injunctive import: the taking of evidence 
appears to be incumbent. To this our doc- 
tors reply, that in all the texts which occur 
concerning Rijaat, it is mentioned generally, 
and not under anv restriction of being wit- 
nessed ; moreover, by Rijaat is to be under- 
stood (as was before stated) the continuance 
of marriage, to which evidence is not a 
necessary condition ; as in a case of Aila, for 
instance, where it (the Aila or vow of absti- 
nence) is done away by the carnal act, to 
which there ire no witnesses : but yet the 
taking evidence to Rijaat is laudable, for the 
greater caution, so as to put it out of the 
power of any person to contradict it. With 
respect to the sacred text quoted by Malik, 
the imperative is to be taken not in an in- 
junctive, but in a recommendatory sense ; 
for in this instance retaining them, and 
separating from them, are connected by the 
intermediate particle ''OR," the text saying 
"RETAIN THEM, or DISMISS THEM, AND 
TAKE TWO WITNESSES," &c., from which it 
appears that the calling witnesses is laudable 
only, and not injunctive, in the present case, 
because, in separation, it is held to be laud- 
able only by all the doctors. 

The wife t should have due notice of it. IT 
is also laudable that the husband give his 
wife previous information of his intention of 
Rijaat, lest she fall into sin ; i for, if she be 
not aware of his intention, it is possible that 
she may marry another husband after the 
accomplishment of her Edit, and that he 
may have carnal connexion with her by an 
invalid marriage, which is prohibited. 

A declaration of previous Rijaat, made 
after the^expiration of the Edit, is to be cre- 
dited where both parties agree in it* IF, after 
the* accomplishment of the woman's Edit, her i 



husband were to declare that he had taken 
her back before the expiration of it, and she 
confirm this, Rijaat is established ; but if she 
deny the fact, her declaration is credited, 
because the husband in this case pretends to 
have performed an act which is not at pre- 
sent in his power, and his declaration is 
therefore liable to suspicion, and is not to be 
credited unless that be removed by the 
woman's confirmation. It is to be observed 
that the oath of the woman (according to 
Haneefa) is not necessary. This is one of 
the six cases of Isthillaf,* which are dis- 
cussed at large in the Book of Marriage. 

But not when they disagree. JF a man, 
having repudiated his wife by a reversible 
divorce, afterwards say to her "I take you 
back," and she reply, "my Edit, is past," 
the Rijaat is not valid, according to Haneefa. 
The two disciples say that it is valid, be- 
cause it occurs within the Edit, that being 
accounted to continue until the woman givts 
notice of its completion; and in this case 
the Rijjat takes place before such notice ; 
hence also it is that if the husband say to 
her, "I have divorced you," and she reply, 
'my Edit is passed," still divorce takes 
place. The argument of Haneefa is that 
that the Rijjat appears to occur after the 
completion of the Edit bacause the \yife is 
trustee with respect to her declaration of 
her Edit being completed : and as to the case of 
divorce cited by the two disciples, it is not 
admitted by Haneefa, for divorce in such 
a circumstance, according to his opinion, 
would not take place : admitting, however, 
that it did take place, it may be replied that 
divorce takes place from the declaration of 
the husband, after the completion of the 
Edit (by his saying "that he had divorced her 
during her Edit"), because this a severity f 
upon himself, and may therefore be allowed 
credit , contrary to returning to a wife, as 
that cannot be established by a declaration 
made after'the expiration of the Edit, since 
sucli declaration affects another person. 

The declaration of wife who is a slave 
must be credited respecting the termination 
of her Edit. IF the husband of a female 
slave, after her Edit is past, declare that 
tie had taken her back during her Edit, and 
ler owner confirm his declaration, but she 
lerself deny it, she is to be credited , accord- 
ing to Henetfa. The two disciples say that 
the confirmation of her owner is to be cre- 
dited, because her person is his property, 
and hence he makes a declaration in favour 
of the husband, respecting a thing which is 
lis particular right ; this, therefore, is ana- 
ogous to a case where a master makes a 



'"Cases treating of the necessity of a wife's 
confirming any question respecting her mar- 
riage by oath. 

t Because (if she had tibeen before under 
wo sentences of divorce) this is a third sen* 
nee, which repudiates her from him by the 
igorous prohibition 



BooKlV.-- 



DIVORCE. 



105 



declaration concerning his slave's marriage ; 
that is to say, if a man assert that he had 
married the female slave of such an one after 
the expiration of her Edit, she denying and 
her master confirming his assertion, the de- 
claration of the master is to be credited in 
preference to that of the slave ; and so like- 
wise in the case in question. To this our 
doctors reply that the efficiency of Rijaat is 
founded upon the Edit, because, if that still 
exist, the former is good and valid, but not 
otherwise ; and as the declaration of the 
female slave is to be regarded concerning her 
Edit, it must in the same manner be regarded 
with respect to what is founded upon it. 
But if the above case be reversed, that is, 
if the slave confirm and the owner deny the 
husband's assertion, the denial of the owner 
is to be credited, according to the two dis- 
ciples (and also according to Haneefa, in the 
Rawayet Saheeh), because her Edit no longer 
remains, and the right to the Ma tat, or pre- 
sent,* rests with her owner ; wherefore her 
assertion is not to be credited to the preju- 
dice of her master's right, as she is in this 
case liable to suspicion ; contrary to the for- 
mer case, in which the owner by confirming 
the assertion of the husband, acknowledges 
the continuance of Edit at the period of 
Rijaat ; and supposing this to be the case, 
his [the owner's] authority disappears ; his 
right, therefore, is not injured by her denial, 
and hence, that is to be credited. If, how- 
ever, in this case the female slave assert that 
her Edit is past, and the husband and owner 
unite in saying that it is not past, her asser- 
tion is to be credited, she being trustee with 
respect to that she says, as having sole in- 
formation upon the point in dispute. 

At what time the power of Rijaat termi- 
nates, WHEN the menstrual discharge, in 
the third courses after divorce, continues for 
ten days, or upwards, the powej of Rijaat 
terminates upon the stoppage, although % the 
woman should not yet have performe^i her 
customary ablutions : but if it stop within 
less than ten days, the power of Rijaat does 
not terminate till such time as the ablutions 
are performed, or the hour "f prayer is past. 
The reason of this is that a menstruation 
is not accounted to exceed the space of ten 
days, and hence the woman's purification is 
understood on the instant of the stoppage, at 
any time beyond that period ; and the power 
of Rijaat consequently terminates; whereas, 
when it stops within that period, it is pos- 
sible that it may still return, and hence her 
purification cannot be finally determined 
until the customary ceremonies of ablution, 
&c., are performed. What is now advanced 
applies to the case of Mussulman women 
only ; but with Kitabees the power of Rijaat 
terminates on the instant of stoppage of the 
menstrual discharge in the third courses 
after divorce, alttough it should happen 
within ten days, because with such women 



/ *See Book II. Chap, III 



no other sign is requisite to establish purifi- 
cation than the simple cessation, as they are 
not held, by our doctors, to be subject to the 
injunction of the law in this particular 

THE power of Rijaat terminates where the 
woman performs the teyummim,* and re- 
peats the usual prayers, according to Haneefa 
and A boo Yoosaf. This proceeds upon a 
favourable construction of the law. Moham- 
med says that it terminates immediately 
upon the performance of teyummim ; and 
this opinion is conformable to analogy, be- 
cause the teyummim, where water is not to 
be had, stands as a purification, having the 
same virtue with ablution, as being a sub- 
stitute for it The argument of Haneefa 
and Aboo Yoosaf is that sand or dust is 
rather a defiler than a purifier, as it soils the 
body, and the latter even adheres to it j and 
rubbing the body therewith is admitted to 
be a purification from necessity only ; but 
this necessity does not absolutely exist until 
the proper hour of prayer arrives ; and that 
which is established through necessity is 
restricted in its virtue to the particular 
point which occasions the necessity ; and 
hence the teyummim is regarded with re- 
spect to prayer only, and not with respect to 
the termination of the Edit. Some doctors 
have delivered it as the opinion of the two 
Elders, that the power of Rijaat terminates 
upon the commencement of prayer ; other 
say that it does not terminate until the con- 
clusion, in order that the rule respecting ths 
repetition of prayer may by fulfilled. 

WHERE the woman, in performing ablu- 
tion, omits any part of her person, if it be a 
complete limb (such as the hand or foot, for 
instance), or more, the power of Rijaat does 
not terminate :f but if the part omitted be 
less than a limb (a finger, for instance) it 
terminates The compiler of the Hedaya 
observes that this rule proceeds upon a 
favourable construction of the law; for ana- 
logy would dictate, in this case, that if a 

* According to the Mussulman law, no 
religious act can be performed without a pre- 
vious purification, by ablution, where water 
is to be had, or, in defect of water, by teyum- 
mim, that is, rubbing the hands, face, and 
other parts of the body, with sand or dust. 
A woman; while in a state of impurity, is 
incapable of any religious act; and hence 
this formal purification is requisite upon the 
stoppage of the menstrual discharge. The 
po ; ntupon which the case here considered 
turns is whether, as the teyummim is only a 
substitute for ablution, the power of Rijaat 
continues until her repetition of prayer, or 
whether it terminates immediately upon the 
performance of that act. m 

fThat is, as the ablution is in this case 
incomplete, the power of Rijaat does not 
terminate until prayer ; but when that w 
repeated, it terminates of course, the 
woman's purification being then fully ascer- 
tained. 



106 



DIVORCE. 



[VoL. I. 



complete limb be through forgetfulness 
omitted, the power of Rijaat discontinues, 
because the woman has performed the ablu- 
tion upon the greatest number of her limbs, 
and the rule of the whole applies to the 
greatest number ; whereas, on the other 
hand, in the omission of any part short of a 
complete limb, it would suggest that the 
power of Rijaat still remains, because the 
laws respecting Janayat and the courses do 
not admit of division, and hence, where the 
power of Rijaat remains with respect to a 
part, it continues with respect to the whole, 
as in the liberty of prayer, for instance ; in 
short, analogy requires that the rule be the 
same in both cases ; but the reason for a 
more favourable construction is that there is 
an essential difference in the two cases, be- 
cause any part short of a complete limb soon 
decomes dry, especially in hot weather; and 
hence it is not certain but that part may 
have undergone ablution together with the 
rest, for which reason it is here said that the 
Rijaat terminates : whereas a complete limb 
does not quickly become dry ; neither can 
the omission of so large a portion of the per- 
son, in ablution, be ascribed to forgetfulness. 
It is recorded from Aboo Yoosaf that the 
omission of ablution with respect to the 
mouth or nostrils is the same, as with 
respect to a complete limb ; but it is else- 
where recorded from him that these stand 
the same as any part short of a complete 
limb (and of this opinion is Mohammed), be- 
cause there is a difference of opinion con- 
cerning the divine injunction directing the 
ablution of those parts. 

A husband may take back an enenjoyed 
divorced wife, provided she be delivered of a 
child within such a time ai establishes its 
parentage in him.* IF a man divorce a wife 
who is pregnant, or who has brought forth 
a child, and declare that he has never had 
carnal connexion with her, he is neverthe- 
less at liberty to take her back, because 
where the pregnancy appears within such 
time as renders it possible to be derived from 
him, to him it is to be ascribed ; and this cir- 
cumstance proves his connexion with her, 
whence a right of Rijaat is established in 
him, as the divorce thus appears to be rever- 
sible, and in the same manner where the 
parentage of the child born of her is estab- 
lished in h>m, his connexion with her is also 
established ; and it thus appearing that she 



*To understand the scope of this case, it 
is requisite to advert to one of the funda- 
mental laws of divorce, that a divorce pro- 
nounced upon a woman with whom the 
husband has not had carnal connexion is, in 
all cases, irreversible. The case here con- 
sidered supposes the husband to have repu- 
diated his wife by a sentence of divorce 
undefined, that is, without specifying 
whether it is reversible or irreversible : for if 
he were to declare it under the latter de- 
scription, it holds so at all events. 



has been enjoyed by him, the divorce is con- 
sequently reversible ; and his declaration is 
in either case null, as the law denies it, be- 
cause, by ascribing the woman's pregnancy, 
or the birth of the child, to the carnal met of 
the husband, it establishes her marriage, and 
consequently his right of Rijaat, a fortiori; 
It is to be observed that by the husband di- 
vorcing a wife who has brought forth a child 
is here meant divorce after delivery ; for if 
the child were born after the divorce, the 
Edit would be thereby accomplished and the 
power of Rijaat would terminate of course. 

A man acknowleding that he had never 
consummated with his divorced wife has no 
power of Rijaat, although he have been in 
retirement with her. IF a man retire with 
his wife in such a way as amounts to a Khal- 
wat Saheeh, and afterwards divorce her, de- 
claring that he has not had carnal connexion, 
he has no power of Rijaat, because that would 
have been confirmed to him by his commis- 
sion of the carnal act ; but he acknowledges 
that this has not taken place, and hence his 
declaration is credited, as it operates to the 
prejudice of his right ; and the law does not 
on this occasion deny his declaration, because 
a woman's right to her stipulated dower is 
founded upon her making delivery of her 
person, and not upon her husband's seisin of 
it : contrary to the former case, as there the 
law is repugnant to the husband's declaration. 

IF a man divorce his wife after a retire- 
ment, and again take her back, and after- 
wards assert that he has not had carnal con- 
nexion with her, and she should be delivered 
of a child within a day short of two years 
after divorce, the Rijaat is valid notwith- 
standing his assertion, because the parent age 
of the child is established in him. as the 
woman had not declared the completion to 
her Edit, and a child may be supposed to 
continue so long in the womb, whence the 
husband i considered as having had carn^al 
connexion with her before divorce, because 
if Her pregnancy were ascribed to such con- 
nexion after divorce, the marriage stands 
dissolved on the instant of divorce, on ac- 
count of its not having been then consum- 
mated : and of course the subsequent carnal 
connexion is unlawful and Mussulmans a-e 
not supposed to commit any unlawful acts. 

Rijaat may be established by the birth of a 
child. IF a man suspend the divorce of his 
wife upon the cirumstance of her producing 
a child, and she be delivered of a child, and 
again of another within not less than six 
months after, although it were more than 
two years, Rijaat is established,* provided the 
woman have not declared the completion of 
her Edit, because divorce taking place upon 
the woman in consequence of her first de- 
livery, Edit was incumbent upon her ; and 
her second child must be supposed to pro- 



That is to say, the man is considered as 
having taken back his wife. (See the begin- 
ning of this chapter,) 



BOOK IV. CHAP. VI.] 



DIVORCE. 



107 



cecd from an embrace of the husband during 
the Edit, which act on his part amounts 
to a formal reversal of the divorce. 

IF a man say to his wife, ' 'every time that 
you produce a child you are under divorce.", 
and she be delivered of three children at 
three separate births, that is, within not less 
than six months of each other, Rijaat is estab- 
lished by the birth of the second child and 
in the same manner by that of the third, be- 
cause, upon the birth of the first, divorce 
takes place, and Edit is incumbent, and upon 
that of the second Rijaat is established, for 
the reason before observed, that it must be 
supposed to proceed from an embrace of the 
husband during the Edit ; and a second di- 
vorce takes place, because the husband has 
suspended divorce upon child birth with the 
expression, "every time that," and Edit is 
incumbent in consequence of this divorce ; 
and by the birth of the third, Rijaat is again 
established, for the same reason as above, 
and a third divorce takes place in the same 
manner as the second ; and in this case the 
Edit is to be counted by the courses, because 
the woman is not pregnant, but subject to 
courses, at the period of each divorce taking 
place upon her. 

A woman under reversible divorce may 
adorn hers*//. IT is allowed to a woman 
under reversible divorce to adorn herself as 
she is lawful to her husband on account of 
their marriage still holding : and as Rijaat 
is laudable, and her adorning of her person 
may excite him to it, the action is therefore 
permitted by the law. 

A man must not approach a reversible di- 
vorced wife without giving htr intimation. 
IT is not proper for a man, having a wife 
under reversible divorce, to approach her 
without previous intimation, or letting her 
hear his footsteps: this is where he has no 
intsntion of Rijaat ; because a woman is 
sometimes undressed, and it mignt happen 
that if he were to come upon her unawares 
he would see parts of her, the sight of which 
occasions Rijaat ; and this not being his in- 
tention, he would give her another divorce, 
which would protract her Edit. 

A divorced wife cannot be carried upon a 
journey until Rijaat be established. A MAN 
cannot carry with him, upon a journey, a 
wife whom he has repudiated by a reversible 
divorce, until he have called witnesses to bear 
evidence to his Rijaat. Ziffer says that the 
husband has such a power, because their 
marriage still holds ; which is the reason 
why he may lawfully have carnal connexion 
with her, according to Haneefa. The argu- 
ments of our doctors are twofold FIRST the 
word of GOD, who has sai'd, "TAKE THEM 

NOT FORTH FROM THEIR DWELLINGS," where 

the text applies to the woman under reversible 
divorce, the carrying of whom upon a journey 
is the removal of hem from their dwel- 
lings, and is therefore illegal ; SECONDLY, 
the only reason why the effect of a sentence 
of reversible divorce is postponed to the ac- 
complishment of the Edit is, the possible in* 



tendon or wish of the husband to take back 
his wife ; but where he does not do so before 
the Edit is accomplished, it appears that he 
had no such wish or intention, in which case 
it would be evident that the sentence took 
effect upon the instant of his pronouncing it 
and that the wife was consequently sepa- 
rated from that period ; for if the effect of 
the sentence were in reality restricted to the 
completion of the Edit, another Edit would 
then always be requisite after the first : and 
hence, as it appears that the wife is, in effect 
as a stranger to her husband, from the time 
of the sentence of divorce, it follows that he 
has no authority to carry her forth ; whence 
it is here said that he cannot carry her upon 
a journey until he has called witnesses to bear 
evidence to his Rijaat: in which case the Edit 
is annulled, and his authority re-established. 

Cohabitation is not made illegal by a re* 
versible divorce. CARNAL connexion with a 
wife is not rendered illegal by a reversible 
divorce, according to our doctors. Shafei 
maintains that it is rendered illegal thereby, 
since the connubial connexion is dissolved 
because of the appearance of that which ter- 
minates marriage, namely, his sentence of 
divorce. The argument ojf our doctors is that 
the connubial tie still continues, insomuch 
that the husband is at liberty to take back 
his wife, even against her will, because a 
right of Rajaat is reserved to him out of ten- 
derness, in order that he may b6 enabled to 
recover his wife when he becomes ashamed 
of having divorced her : and this necessarily 
implying that he is empowered to recover 
her, his being so proves that Rijaat is a con- 
tinuance of the marriage, and not a marriage 
de novo, as a man cannot marry a woman 
against her will. With respect to what 
Shafei advances, that "the connubial con- 
nexion is dissolved on account of the ap- 
pearance of that which terminates marriage, 
namely, his sentence of divorce, it may be 
replied that the effect of the terminator is 
postponed to the completion of the Edit, -ac- 
cording to all the doctors, out of tenderness 
the husband, as above. 

Section. 
Of Circumstances which render a divorced 

Wife lawful to her Husband. 
A man may marry a wife repudiated from 
him by one or two irreversible divorces. IN 
a case of irreversible divorce, short of three 
divorces, the husband is at liberty to marry 
his wife again, either during her Edit, or 
after its completion, as the legality of the 
subject still continues, since the utter ex- 
tinction of such legality depends upon a 
third divorce ; and accordingly until a third 
divorce take place, the legality of the iubject 
continues. 

OBJECTION. IF the legality of the subject 
continue, it follows that it is lawful for any 
other person besides the husband to marry 
the wife during her Edit. 

REPLY. Her marriage with any other 
during her Edit is forbidden, on account of 



108 



DIVORQE. 



its inducing a doubtful parentage ; -but if 
the husband marry her, this objection can- 
not exist. ' ' ' ' 

But if by three divorces ihe cannot marry 
her until she be tpfreviously married to another 
man IF a man pronounce three divorces 
upon a wife who is free, or two upon one 
who is a slave, she is not lawful to him until 
he shall first have beea regularly . espoused 
by another man ; who, having duly consum- 
mated, afterwards divorces her or dies, and 
her Edit from him be accomplished, because 
GOD has said "IF HE DIVORCE HER^ SHE is 

NOT, AFTER THAT, LAWFUL TO HIM*' (-that 

is after a third divorce) "UNTIL SHE MARRY 
ANOTHER HUSBAND." And here 'two divorces 
to a slave are the same #8 three to a free 
woman, because the legality of the subject 
has only half its force in a slave, on account 
of her state of bondage ; and hence it would 
follow that, to such an one, a divorce and a 
half stands the sarrie three" divorces to a 
free woman, -but as divorce i is mcapable of 
subdivision; two divorces are "allowed. As 
to what is said, that the>- second husband 
duly consummating is a condition, it is 
founded on the text here quoted, in which 
the word Nikalv [marriage] implies carnal 
connexion, as it bears two meanings, by one 
of which it signifies carnal conjunction, and 
by the other the legal union of the 1 sexes 
and it is on this occasion taken in the former 
sense \ but' ever admitting that <the- word 
Nikah, in the text, meant simply the mar- 
riage contract, yet < the condition is estab- 
lished upon a weH-fcnown tradition of 1 the 
Prophet who being questioned concerning 
person a power -'of marrying again a wife 
who, after he- had repudiated her by three 
divorces, had been married to another man, 
and whom, after retiring with her; and lift- 
ing her veil, that- man had divorced, replied 
"the woman is. not lawful to her first hus- 
bnd until she has tasted the embrace 6 f /the 
other ;"!Du* the', condition requires only the 
entrance of : the penis - into the vagina, and 
not the emission of seed) as the 1 a-bove tradi- 
tion implies the entrance- 'generally.,- whence 
that only is understood. , 

Nature of the consummation in tfjc second 
marriage which renders a divorce^ wife again 
lawful to fteV first' husband; A YOUTH under 
puberty is the same? as a full grown man 
with respect \to fegarizrng ; that is to say, if 
amahfeivehis wife three 'divorce* 1 , and she 
after 1 her Edit, ' mar*y * with a ; youth oinder 
maturity; and he perform the carnal act with 
her, she' ^heTt ! [in ' case of hisi decease or 
divorce*] becomes lawful 'tocher first husband 
because the condition', 'namely, entrance, in 
virtue of 1 & 'regular marriaige, is necessarily 
supposed 46 be 'fulfilled,' Malik says that 
the carnal act of a full-grown man is the 
condition; because unless he be arrived at 
maturity * l the' woman's testing (that is 1 en- 
joying pleasure from) his embrace/ which is 
the condition, is not fulfilled : "bnat the cases 
before recited in the < book of imarrrage- dis- 
prove this distinction of Malik. { It is 



observed, that it is recorded in the Jama 
Sagheer, that a boy -under puberty but wh6 
is such as to be -able to perform the carnal 
embrace is termed a Moorahick *, and where 
such an one has carnal knowledge of his Wife, 
ablution' is incumbent uptoh her, and she is 
thereby rendered lawful to a former husbandl 
if -he- should have repudiated her' by three 
divorces ; and the carnal erribrace of sucH'aii 
one is implied from the circumstance of hi* 
having a priapism 'and desire. It is alsd'td 
be observed that ablution is made incumbent 
upon the woman, in the present Case, only 6n 
account of the entrance of the boy's ^enis 
into her vagina exciting an emissio se'tinnii 
on her part, the necessity therteof with re- 
spect to her being soley in Consequence bf 
her full pliberty ; but it is 'not incurhbent 
upon the boy, he not being subject 'to t he 
necessity of such observance ; but yet it 
required of him, that he may be habituated 
to a laudable custom. ' " ' '' 

A FEMALE slave, whom her husband has? 
repudiated by two divorce**, is not renderelc] 
lawful to him 'by the carna! embrace ofhef 
mas er, becafuse that which is essential to heir 
legatity {namely; marriage) dods not exl's^t 
her e 1. ' 

The second 'marriage ; tyheri contracted 
under a legalizing condition, is disapproved 
but yet the 'Woman is rendered l legal by it 'tb 
her fi rs t husband. -^Ir a rriari marry a womah 
whose husband had repudiated her by three 
divorces, under a condition of rendering her 
lawful to' her 'former husband, as {f h'e were! 
to declare to her "I nrtarr^ you under a 
condition of reridcririg you 1 lawfu} to your 
former husband, or, as il she were to say tcf 
hlm--"I marry with you under the condi- 
tion of my becdming 'lawful to 1 miy fdrmer 
husbarid/ f this is 'ah nlbominable marriage. 
because the second hiisband 13 here t'ermed 
a Mohulljl, or lefgatizer, and 1 th< Prophet r/as 
said, r 'le^ the curse of GOD 'fall upon the 
Mbhullil an'd the Mphallal-le-hoo : * bu^ 
nevertheleiss, if the parties contract a mar- 
riage 'under this Condition, and the man 
divorce' the 1 woman after carnal connexion, 
she, upon the completion of her Edit, be- 
comes lawful to her' former husband, as 
there undoubtedly exisfs a consummation 
in a regular marriage, vi^hich is the cause of 
legality, and the marriage is not ' invalidated 
by the Condi tioh. His recorded from Aboo 
Y6osaf that such' a m'arr'Uge is nujl, as it 
falls" 1 under ihe description of a Nikkah 
MoWokket, or' temporary marriage, because 
the words of the husband, ' *T marry you 
under a condition of rendering you* lawful 
to Vour 1 former 'husband/' imply, * ' I marry 
you until the tim* of our having "carnal con- 
nexion, and not for an ' indefinite time, and 
is'therefbr'e'the 1 samfe'as wriere a ''man says tq 
a >worriah, "I marry you for a rnontK. ahcl so 
fotth ; and; the rnarriafgt bein^ invalid, th^ 



' *The thihg I'etiderect legal. It rnearls. 
this odcfassioni a'lihlrt^ rehde^cl legal btf 
indirect and uriap^bved expedient. 



IV. CHAP. II. ] 



DIVORCE. 



woman cannot by jthat. means be rendered 
lawful to, her former, hu&band.; but in reply 
to this our doctors urge that the restriction 
of the rnarriage to any specified tirade is not 
expressly 'mentioned by the parties, nor does 
the man here, marry the woman under any 
other condition than that of doing by her any 
marriage requires ; and hence it does not 
tcome under , the .description of a tenapbrary 
osoarriage. It is recorded from Mohammed 
, that the marriage is legal and valid,' for the 
reasons before mentioned ; but yet the woman 
. is not. thereby' made lawful to her first hus- 
band, because the second huaband here en- 
, devours to precipitate a thing which the 
,Jaw postpones (for the law postpones her 
legality, to her f former husband to ' the 
death of her present), and -therefore meets a 
due return in the defeat of his design (to wit, 
{legalizing; the woman to her former hus- 
band) '} in the same manner as in the murder 
of an inheritee ; that is to say, if any person 
slay his inheritee, he is thereby cut off from 
inheritance, as having attempted to precipi- 
tate that which the . law has postponed/ and 
thus m^ets his punishment in the 1 defeat of 
\his desfgn (to wit, Immediate inheritance) ; 
.and so also in the present case. 
L '.The first husband, recovering his wife by 
an intetVenient marnaqe, recbvers his full 
tpower of divorce over her. IF a man 'repu- 
diate his wife by one of ; by two divorces, and, 
her Edit being completed, she be married 'to 
another man, and afterwards return to her 
former! husband, he becomes again' autho- 
rized so far a three divorces, the one or tfte 
two divorces formerly pronounced ' ur>on her 
by him- having 'bcfen cancelled and ' 'obliterated 
by her marriage with the second husband, 
in the same manner ' as three divorces would 
have been;* This is the doctrine of the two 
Elders, Mohammed says that marriage with 
a second husband doe.s not obliterate anv 
tfiing short of three divorces. The proofs 
on either side are drawn from the Arabic!' ' 
,, The wife's declaration of her having been 
legalized is, to be credited.-^lw a'fnan pro* 
nourvce three divorces upon his wife, and she 
afterwards, declare that "her Edit having 
been. duly accomplished, >ehe has been mar- 
ried to another -man, and enjoved and 
divorced by him, and that her 1 Edit from 
him is. .elapsed," he* former htisband may 



That is to say, one or,' two divorces are 
obliterated, the sape as three would be, Kad 
that' been the nuniber formerly pronounce cl 
by hirn. It is necessary to observe U?at this! 
cfllse involves 'a principle in divorce which is 
rtowhere expressly 'mentioned : namelv, 'that 
the same woman is not a legal subject of 
more than three divorces to any one , rnan,, 
and consequently, that a rrian who repudi- 
ates hit wife 'by two divorces (for instance), 
* he marry her again, unless the! interven- 
tion/of another rnwbahd obliterate these t^o, 
has no power beyond one divorce' in the 
escond marriage, 



lawfully admit her asservation, and marry 
her, provided that from the period of his 
divorcing her such a space of time have 
elapsed as affords a possibility of this having 
been the case, and that he actually believe 
her assertion tp be true : because the sub- 
stance of. the woman's assertion i$ either 
a matter of mere temporal concern, (as . not 
comprehending), any merit or demerit before 
GOD), .or it is a 'matter of religion (on ac- 
count of legality being suspende/d upon it), 
and the declaration of a single person, either 
in matters of a temporal or spiritual nature, 
is worthy of credit ; and the confirmation of 
her assertion is not forbidden or reprobated, 
where the space of time which has inter- 
vened admits the possibility of its truth. 
The learned differ concerning the shortest 
period which admits of this possibility, as 
shall be fully explained in treating of Edit. 



CHAPTER VII. 



OF 



Definition of the. term. AILA, in its 
primitive sense, signifies a vow. In lav, it 
implies a husband swearing to abstain from 
carnal knowledge of his wife for any time 
above four months, if she be a free woman. 
or two months, if she be a slave. 

The mode in whitih Ail* it established.- *!F 
a man swear that he will not have -carnal 
connexion with his wife, or, that he will 
not have such connexion with her 'within 
four months, an Aila is established ; be- 
cause GOD- has said, "WHERE A MAN MAKES 

A VOW [Aila] WITH RESPECT TO HIS WIFE, 

HE MUST STAY FOUR MONTHS," to the end 
of the verse. 

In breach of Aila expiation is incumbent. 
!F a man, in a case of Aila, have carnal 
knowledge of his wife within four months 
after, he is forsworn in his vow, and expia- 
tion is incumbent upon him, this being in- 
curred by the breach of his vow ; and the 
Aila drops, as his vow is cancelled by the 
breach of it. . 

But if it be observed, a divorce irreversible 
ensues at its termination. BUT if he have 
not carnal knowledge of her for the space 
of four months; a divorce irreversible takes 
place, independent of any decree of separa- 
tion from the 'magistrate, Shafei a;ys that 
a decree of the magistrate is requisite, be* 
cause the husband here withhold* her, right 
(namely carnai connexion) from his, wife, 
and hence the magistrate acts as his substi- 
tute, in effecting t separation ; as in the case 
of ennuchs and impotent perapns, in short, 
according to Shatei, a right to ,p(5rnand 
separation rests with , the woman, *p the 
same manner, as in the case of her , marriage 
to one who U impotent or an ennuch ; ,.^d m 
consequence of a depree of, the magistrate 
she becomes repudiated by a divorce 



110 



DIVORCE. 



[VoL. I. 



siblc, The arguments of our doctors are two- 
fold -.FIRST, the husband, in abstaining 
from carnal connexion for the space of four 
months, acts unjustly towards his wife, by 
withholding from her that which is her right, 
for which the law makes him a due return, 
in depriving him of the benefit of marriage 
upon the expiration of that term ; and this 
is an opinion recorded from Othman, and 
Alee, and Abdoola-Ibn-Mussaood, and Ab- 
doola-tbn-Abbass, and Abdoola-lbn-Aumroo, 
and Zeyd-Ibn-Sabit : -SECONDLY, in times 
of ignorance* an Aila stood as a divorce, 
and the law afterwards constituted it a di- 
vorce postponed to the period of four months: 
Now, if a man swear to abstain for four 
months, his vow drops at the expiration of 
that term ; that is, if the same man should 
afterwards marry and cohabit with the same 
woman he is not forsworn, because the vow 
was temporary ; but if he should have sworn 
to abstain for ever, his vow continues in 
force, because it is general (that is to say, is 
not restricted to four months), and no viola- 
tion appears by which it might be cancelled 
yet divorce does not take place upon it re- 
peatedly, unless where marriage is repeated, 
because, after separation, the withholding of 
the woman's right cannot be supposed to 
exist ; but if, after separation, the vower 
were to marry her again, the Aila returns ; 
and consequently, upon carnal cohabitation 
in this marriage, he would be forsworn ; or 
if he abstain, an irreversible divorce again 
takes place upon her, at the expiration of four 
months, as before, because the obligation of 
the vow continues, on account of its being 
ganeral, and in consequence of the man 
marrying her again her right to carnal con- 
nexion is established, and of course his in- 
justice in withholding it from hr. And here 
it is to be observed that the TC commencement 
of the Aila is to be counted from the date of 
the second marriage ; and if this man were 
again a third time to marry her, the Aila 
returns, and occasions an irreversible divorce 
at the expiration of four months, in case of 
the husband refraining from carnal connexion 
for that term, for the reasons already stated. 
What is now advanced proceeds upon a 
supposition of the vower marrying the woman 
again without the intervention of her marriage 
with another man ; but if, in the interim, 
she had been married to another man, divorce 
would not take place in consequence of the 
vower abstaining from carnal connexion for 
the space of four months, in the second mar- 
riage, because the vow is confined in its 
effect, to divorce in the first or original pro- 
priety,! the Aila in the present case, being 



That is, before the establishment of the 
Mussulman faith. 

t When a man marries a woman, his milk 
flvhich, is here and elsewhere rendered 
propriety, or ri$ht ; that is, peculiarity of 
possession) continues with respect to her, 
notwithstanding divorce, until it be abro- 



the same if the husband were to suspend 
divorce upon his abstaining from carnal co- 
habitation for the space of four months, 
where the effect is restricted to the propriety 
then existing, and so in this case likewise. 
This case is grafted on the case of oblitera- 
tion, concerning which there is a difference 
of opinion between Ziffer and our doctors: 
and that case is where a man, having said to 
his wife, "if you enter this house you are 
under three divorces," afterwards repudiates 
her by an express sentence of three divorces, 
and she is again married to him, and then 
enters the said house, from which no divorce 
takes place, according to our doctors, whereas 
Ziffer holds that divorce takes place : as was 
recited at large in a former chapter. But 
observe that, in the case now under consider- 
ation, although divorce do not take place, 
yet the obligation of the vow remains, as it 
was general, and continues uncancelied by 
any breach of it : and hence, if the man 
should ever have carnal connexion with the 
wife at any subsequent period, expiation is 
incumbent upon him; on account of this 
breach of his vow. 

A vow of abstinence for a term short of 
four months does not constitute Aila. IF a 
man make a vow to abstain from carnal 
knowledge of his wife for less than four 
months (as if he were to restrict it to two 
or to three months), it is not an Aila, because 
Ibn Abbas has said that Aila is not occa- 
sioned by a vow of abstinence from carnal 
connexion with a wife for a period short of 
four months ; and also, because a husband 
who abstains from the embrace of his wife 
for the space of four months or upwards ; 
has no obstruction to plead, that being the 
longest space during which any obstruction 
is supposed to exist;* but an obstruction 



gated by Her marriage with another. In 
short, the propriety, or peculiar right, of 
a husband is a priciple which is alive in 
the actual existence of marriage, and is not 
annihilated, but remains dormant, or quies- 
cent, under a termination of it by divorce ; 
and hence it is that, where a man marries a 
woman, after having repudiated her, he is 
said to attain a revival of propriety, not a 
propriety de novo. Many of the most im- 
portant and (apparently) unaccountable laws 
of divorce are to be traced to this source. In 
the present case the Aila is said to have been 
restricted in its effect to the vower' s original 
propriety, and consequently, in its effect, 
recurs upon every revival of that propriety 
by marriage ; but it being abrogated by the 
woman's intervening marriage with another, 
the vower' s subsequent marriage with her is 
an attainment of propriety de novo, in which 
the vow cannot operate. 



By the , obstruction here t mentioned is to 
be understood pregnancy for the last four 
months, during which it is not deemed lawful 
for a husband to have carnal connexion with 
his wife. 



BOOK IV.-CHAP. VII,] 



DIVORCE. 



Ill 



may continue for a time short of four months 
and consequently divorce will not take place 
from a vow of abstinence for that time. 

IF a man make a vow, saying to his wife, 
"by GOD I will not have carnal connexion 
with you for two months, nor for two months 
after that," Aila is established. The proofs 
of this are drawn from the Arabic. But if 
a man swear that "he will not have carnal 
connexion with his wife for two months," 
and then remain silent for a day, and the 
next day again swear that "he will not have 
carnal connexion with her for two months, 
after the other two," Aila is not established, 
because the second vow is distinct and sepa- 
rate from the former, the husband, upon his 
making his first vow, being prohibited from 
carnal connexion for two months, and upon 
making the second, four months, except- 
ing the day on which he remained silent, 
whence the term of four months complete 
(being the space of time requisite to consti- 
tute Aila) is not included in this vow. 

IF a man vow that "he will not have 
carnal connexion with his wife for a year, 
excepting a day," Aila is not established. 
This is contrary to the opinion of ZifTer, who 
places the excepted day at the end of the 
year, conceiving this to be analogous to a 
case or hire ; that is to sav, if a man agree 
to let ct hire a house to another for a year 
excepting a day, the day e- cepted is trans- 
ferred to the end of the year, and so in this 
case likewise ; and the exception being trans- 
ferred to the end of the four months the 
complete term of an Aila is involved in the 
vow. The argument of our doctors is that 
the term Mawalee [maker of an Aila] is 
applied only to one who cannot have carnal 
connexion with his wife for the soace of four 
months without incurring a penaltv, such as 
expiation for instance ; but in the present 
case the husband may have carnal connex- 
ion with his wife without incurring Any 
penalty, because the day excepted is not, par- 
ticularly specified, contrary to a case of hire, 
where the excepted day is transferred to the 
end of the year, from necessity, as the con- 
tract, or engagement of hire, would without 
that be void, on account of ignorance ; 
whereas this is not the case in a vow. But 
if, after this vow, the man were on any par- 
ticular day to hava carnal connexion with 
his wife, and four months or unwards of the 
year still remain, Aila is established, as the 
exception then drops. 

IF a man, being in Basra, and his wife in 
Koofa, swear that he will not go to Koofa, 
Aila is not established, because he can st'll 
have carnal connexion with his wife, with- 
out incurring any penaltv,* bv bringing her 
from Koofa to the place of his residence, and 
there enjoying her. 

A vow of abstinence, under a penalty an* 



That is, without subjecting himself to 
any obligation of performing expiation tor 
the breach of his vow. 



nexed, constitutes an Aila. IF a man make 
a vow, annexing to his breach of it pilgri- 
mage, fast, alms-gift, manumission, or di- 
vorce, by saying to his wife, "ff I have 
carnal connexion with you, I am under an 
obligation to fast," or "to give alms," or 
"to perform a pilgrimage," or "such an 
one, mv slave, is free," or "you are di- 
vorced," or "such and one, my wife, is di- 
vorced/' Aila is established, as in this case 
an obstacle is opposed to the commission of 
the carnal act from the terms of the vow, 
in the mention of the condition and the 
penalty, the several penalties above men- 
tioned amounting to prohibition, as the in- 
curring of any of them is attended with 
trouble or injury. Aboo Yoosaf objects 
that suspending the manumission of a slave 
upon the commission of the carnal act does 
not amount to an Aila, as it is possible for 
the husband to evade the penalty, by first 
selling the slave, in which case he might 
commit the act without incurring any 
penalty. To this Haneefa and Mohammed 
reply that the sale of the slave is not a 
matter of certainty, as a purchaser is not 
always found, and hence this objection is of 
no weight. 

Aila holds respecting a wife under re- 
versible divorce. Iv a man make an Aila 
with resoact to a wife under reversible 
divorce, the Aila is established ; but if with 
respect to one under irreversible divorce, 
it is not established, because the connubial 
union still subsists in the former case, but 
not in the latter ; and in the sacred writings 
she alone is declared to be a subject of a vow 
of abstinence who is the wife of the vower. 

But drops on the accomplishment of her 
Edit. IF a man make an Aila with respect 
to a wife under reversible divorce, and her 
Edit be accomplished before the expiration 
of the term of Aila, the Aila then drops, as 
the woman (becoming totally separated by 
the completion of her Edit) no longer remains 
a subject of it. 

An Aila made respecting a woman before 
marriage, is nugatory. lv a man say to a 
strange woman, "By GOD I will never have 
carnal coxnexion with you," or "you are 
to me like the back of my mother,"* and he 
afterwards marry her, neither Aila nor Zihar 
are established, as these expressions are ipso 
facto null, the woman, at the time of his 
addressing her in these terms, not being a 
subject of either one or the other, since none 
are so but wives ; but yet if a man marry a 
woman after having vowed in this manner, 
and have carnal knowledge of her, he must 
perform expiation on account of breach of his 
vow, which is still binding upon him. 



*A species of abuse, by which, in times of 
ignorance, the wife stood virtually ^divorced. 
Since the propagation of the faith, it' only 
occasions the wife to be prohibited to her 
husband until such time as he shall perforjn 
an oyniation. See article Zihar. 



DIVORCE. 



[VOL. I. 



THE term of Aila, with respect to slave, 
is two months, this being the space of time 
fix^d for her final separation ; thus the term 
of Aila of a slave is half that of a free woman, 
as well as her Edit. 

An Aila made respecting a wife at a dis- 
tance may be orally rescinded. IF, at the 
time of making an Aila vow, there should 
exist any natural or accidental impediment 
to generation on the part of either the man 
or the woman (such as the former being sick, 
or the latter being impervia coeunti, or an 
infant incapable of the carnal act or their 
being at such a distance from each other as 
does not admit of their meeting during its 
term), it is, in this case, in the man's power 
to rescind his Aila, by saying "I have re- 
turned to that woman/' upon which the Aila 
drops. Shafei says that Aila, cannot be re- 
scinded but by the carnal act (and such is 
likewise the opinion of Tehavee), because, 
if the above declaration of the husband 
amounted to a rescindment, it would follow 
that a breach of the vow in therein estab- 
lished, and consequently that expiation is 
incumbent : whereas this is not the case. 
The argument of our doctors is that, the 
Mawalee, having wronged his wife by a vow 
prohibiting his carnal connexion with her, 
it remains with him to make her such satis- 
faction as circumstances admit of, by a ver- 
bal acknowledgment : and the wrong being 
thereby removed, he is no longer subject to 
the penalty annexed to it, namely, divorce. 
It is to be observed that if the obstruction 
to generation, in the case under considera- 
tion, be removed during Aila, and after the 
Mawalee's oral rescindment as above such 
rescindment is null, and his commission of 
the carnal act is then requisite to rescind it, 
as he is here enabled to employ the actual 
means, whilst the end remains as yet un- 
attamed. 

An equivocal expression of divorce, take* 
effect according to the husband's interpretation 
of his intention. IF a man say to his wife, 
"yvi are prohibited to me," let him be asked 
concerning the intention of these words : and 
if he say, "my design, in those words, was to 
express a falsehood," his declaration is to be 
credited, as his intention coincides with their 
actual tenor. (Some have said that his 
declaration is not to be credited before the 
Kazee,* as his speech is apparently a vow, 
since the rendering prohibited that which is 
lawful amounts to a vow.) And if he say, 
"1 intended divorce," and single divorce irre- 
versible taket place, except where he designed 
three divorces in which ca*e three divorces 
take place, as was stated in treating of Talak 
Kinayat, or divorced by implication ; and if 
he say, "I intended Zihar/' Zihar is accord- 
ingly established with the two Elders. 
Mohammed says that this is not Zihar ; 
because it is essential to Zihar that the hus- 
band compare his wife to his own relation 



That is, in point of law. 



within the prohibited degrees, which is not 
the case in this instance. The argument of 
the two Elders is that he has dsclared prohi- 
bition generally ; and Zihar also involves a 
sort of prohibition (namely, the prohibition 
of carnal connexion, until after expiation), 
and a circumstance generally expressed is 
capable of bearing a restricted construction, 
And if he say, "I intended prohibition," 
or "I had no particular intention," his speech 
amounts to a vow, and consequently an Aila 
is established from it, because a vow is the 
original thing (with our doctors) in rendering 
prohibited that which is lawful, as shall be 
demonstrated in treating of vows. Some doc- 
tors construe any expression of prohibition 
into a divorce, where there is no particular 
intention, as being agreeable to custom. 



CHAPTER VIIL 

OF KHOOLA. 

t Definition of the term. KHOOLA, in its 
primitive sense, means to draw off or dig up. 
In law it signifies an agreement entered into 
for the purpose of dissolving a connubial 
connexion, in lieu of a compensation paid by 
the wife to her husband out of her property. 
This is the definition of it in the Jama 
Ramocz. 

Reasons which justify Khoola t or divorce 
for a compensation. WHENEVER enmity 
takes place between husband and wife, and 
they both see reason to apprehend that the 
ends of marriage are not likely to be answered 
by a continuance of their union, the woman 
need not scruple to release herself from the 
power of her husband, by offering such a 
compensation as may induce him to liberate 
her, because the word of Goo says "No CRIME 

IS IMPUTED TO THE WIFE OR HER HUSBAND 
RESPECTING THE MATTER IN J.IEU OF WHICH 
SHE HATH RELEASED HERSELF;" that IS to 

say, there is no crime in the husband's 
accepting such compensation, nor in the 
wife's giving it. 

Which occasions a single irreversible 
divorce. AND where the compensation is 
thus offered and accepted, a single divorce 
irreversible takes place, in virtue of Khoola ; 
and the woman is answerable for the amount 
of it, because the Prophet has said that 
Khoola effects an irreversible divorce : and 
also, because the word Khoola bears the 
sense of divorce, whence it is that it is 
clashed with the implied expressions of it, 
and from an implied divorce a divorce irre- 
versible takes place ; but intention is not 
essential to Khoola, because by the mention 
of a compensation, the act is made indepen- 
dent of it : and also, because it is not to be 
Imagined that the womaKi would relinquish 
any part of her property but with a view to 
her own safety and ease, which is not to ba 
obtained but by a total separation, What is 
now advanced proceeds upon a supposition* 



BOOK IV.-CHAP. YIIIJ 



DIVORCE. 



113 



of the aversion being on the part of the wife, 
and not on that of the husband ; but if it be 
on the part of the husband, it would be 
abominable in him to take any thing from 
her, because the sacred text days: "IF YE BE 
DESIROUS OP CHANGING (that is, repudiating 
one wife and marrying another), TAKE NOT 
FROM HER ANY THING:" and also because 
a man, by divorcing his wife from such a 
desire of change, involves Jher in distress ; 
and it behoves him not to increase that dis- 
tress by taking her property. If. moreover, 
the aversion be on the part of the woman, it 
is abominable on the husband to take from 
her more than what he had given or settled 
upon her namely, her dower. (According to 
the Jama Sagheer, if the husband take from 
her more than the dower, it is strictly legal, 
as the text of the Koran already quoted is 
expressed generally , but the former opinion 
is founded on a tradition of the Prophet, to 
whom a woman having mentioned her hatred 
of her husband, he advised her to give up 
her dower, as a compensation, to induce the 
husband to divorce her, to which she replied, 
"I will give that and more 1" but the Prophet 
answered, "not more!" and here the aver- 
sion was on the part of the woman). But 
yet if the husband should take more than the 
dower, it is approved in point of law ; and 
so also, if he were to take any compensation, 
where the eversion is on his part, because 
the sacred text, goes to establish two points ; 
one, the lawfulness of Khoola in a judicial 
view ; and the other, its admissibility 
between the parties and Gop Almighty ; 
now from the tradition which has been 
recited, appears that where the aversion is 
on the part of the wife, a Khoola for more 
than the dower is disapproved ; and, on the 
other hand, the text before quoted shows that 
if the aversion be on the part of the husband, 
he should not take any thing, and conse- 
quently not more than the dower .a fortiori ; 
wherefore the ground of admissibility is 
abandoned, on account of the contradiction 
between the tradition and the text ; and 
practice is established upon the other re- 
maining ground, namely the lawfulness of 
Khoola in a judicial view. 

The wife is responsible for the compensa- 
tion. IF a husband offer to divorce 'his wife 
for a compensation, and she consent, divorce 
takes place, and she becomes answerable for 
the compensation, ; because the husband is 
empowered, of himself, to pronounce either 
an immediate or a suspended divorce, and he 
here suspends the divorce upon the assent of 
the woman, who is at liberty to agree to the 
compensation, as she has authority over her 
own person, and the matrimonial authority, 
like retaliation, is one of those things for 
which a compensation is lawful although it 
do not consist of property ; and the divorce is 
irreversible for the reason already assigned, 
and also because Kkoola is understood to be 
an exchange of property for the person ; and 
upon the husband being vasted with a right 
in the property, the woman; in return, is 



vested with a right in her own person, in 
order that an equality may be established. 

Difference between a wife requiring Khoola 
in lieu of an unlawful article and requiring 
divorce in \ieuof the same in express terms, 
IF the thing offered to the husband in return 
for Khoola be not lawful property (as if the 
woman were to desire him to grant her 
Khoola in lieu of wine or a hog, and he con- 
sent, saying, "I agree to a Khoola in lieu of 
such wine," or so forth; a divorce irreversible 
takes place, but nothing is due to the h x us- 
band : but if a compensation for divorce con- 
sist of a thing not lawful property (as if the 
woman were to desire her husband to divorce 
her for a cask of wine, and he consent, saying 
"I divorce you in consideration of such 
wine," and so forth), a reversible divorce 
takes place. The reason, ' or divorce taking 
p'ace in both instances t that the husband 
has suspende ) it upon the consent of the 
woman, which is already testified ; and the 
difference between the case of Khoola and 
that of divorce is that, in the former, the 
compensation being null, the word used by the 
husband [Khoola] remains, and that, as being 
a Kinayat, or implied sentence, is effective of 
irreversible divorce ; whereas, in the latter 
the word divorce is express, and conse- 
quently occasions reversible divorce only. 
And the husband has here no claim upon his 
wife, because she has not named any appre- 
ciable article, which might be the means of 
deceiving him ; and also, because if the thing 
named be particularly specified by her, it 
cannot be lawfully made incumbent upon 
her in favour of her husband, on account of 
his being a Mussulman ; and in the same 
manner, it cannot be made incumbent if it 
be not particularly specified, as in that case 
she does not charge herself with it: but it 
is otherwise where she specifies a thing under 
a false denomination (as if, for instance, she 
were to make a proposal of Khoola to her 
husband, by saying, "divorce me for this 
cask of vinegar," and he agree, and the cask 
afterwards appear to contain wine), for in 
this case he had a claim upon her for an 
equal quantity of vinegar of the medium 
standard, becaus> her naming an appreciable 
article has been the means of deceiving him , 
and it is also countrary to a case in which 
a master emancipates his slave, or constitutes 
him a Mokatib, in return for a cask of wine, 
forthm the emancipated person is responsi- 
ble to his emancipator for the amount of his 
, estimated value as a slave, because the 
i owner's property in his slave is a thing 
' which bear a certain estimable value, and 
1 which he therefore cannot be supposed 
willing to relinquish gratuitously ; whereas 
the property in the wife's person is not to 
any estimable value in the circumstance of 
the dissolution of the connubial right, as the 
only reason for its being so, in the attain- 
ment of such rights, is its importance, and 
consequent title to respect , when it, is that 
the attainment of that right without a return 
is not countenanced by the law ; but *^* 



114 



DIVORCE 



[VOL, I 



relinquishment of that right being in itself 
a manifestation of such respect* there is then 
no occasion to impose upon any one an 
obligation of property for the purpose of 
manifesting it. 

The compensation /or Khoola may consist 
of anything which is lawful in dower. 
WHATEVER is capable of being accepted as 
a dower, is also capable of being accepted as 
a compensation for Khoola since whatever 
is capable of being a proper return for that 
which is appreciable (namely), the woman's 
person at the time of its coming into pro- 
priety), must, in a superior degree, be capable 
of being a compensation for a thing not ap- 
preciable (namely, the woman's person at 
the time of the destruction of propriety). 

Case of Khoola required in lieu of pro- 
perty unspecified. IF a woman say to her 
husband, "Grant me Khoola for what is in 
my hand," and he agree, and it should after- 
wards appear that she had nothing in her 
hands divorce, takes place ; but nothing re- 
mains incumbent upon the woman, as she 
haft not deceived her husband by any specific 
mention of property : but if she were to say 
"grant me Khoola for the property In my 
hand," and he agree accordingly, and it 
should appear that she had nothing in her 
hand, she must in this case return to him her 
dower, because she has deceived him by a 
specification of property which did not exist ; 
and hence he does not appear to consent to a 
relinquishment of the connubial propriety 
without a return, and the woman cannot be 
legally bound to give the thing specified, or 
its value, as its kind or species is unknown ; 
neither can she be laid under any legal 
obligation to render the estimated value of 
her person, that is, her proper dower, be- 
cause, in the circumstance of the destruction 
of the connubial propriety, that is not appre- 
ciable ; it is therefore fixed that there remain 
incumbent upon her whatever the husband 
may have given in lieu of his attainment of 
the propriety, in order that thus he may 
be shielded from injury. If, moreover, a 
woman say to her husband, "grant me Khoola 
for the Dirms in my hand/' and he agree 
and it afterwards appear that she had nothing 
in her hand, he has a claim upon her for 
three Dirms. The proofs are here taken from 
the Arabic. 

Case of Khoola in lieu of an absconded 
slave. IF a man enter into an agreement of 
Khoola with his wife, in lieu of an absconded 
slave, on the condition that, if the slave be 
recovered, she shall make him over to the 
husband, but if not, she shall not be answer- 
able ; yet she is not released from responsi- 
bility, and it remains incumbent upon her 
either to make delivery of the slave or of his 
value, because an agreement of Khoola is of 
a reciprocal nature (whence it is requisite 
that the recompence be received on the part 
of the husband) ; and the condition of release 
from responsibility agreed to by the parties 
is disapproved, and consequently void ; but 
yet the Khoola is not so, as it is not rendered 



void by involving an invalid condition. 
Analogous to this is a case of marriage ; 
for if a man marry a woman, agreeing to 
give, as her dower, an absconded slave on 
the condition that if he be recovered he shall 
be made over to her but if not, that the 
husband is not to be answerable : yet the 
husband is not released from responsibility, 
and it remains incumbent upon him either 
to deliver to his wife the slave specified 
when able so to clo, or to pay her hit price. 

Cases of Khoola granted for a specified sum. 
Ira woman say to her husband, "divorce 
me thrice for one thousand Dirms, 1 ' and he 
pronounce a single divorce, there remains 
incumbent upon her one third of the thou- 
sand Dirms, because, in requiring three 
divorces for the whole sum, she has required 
each divorce, separately, for the third of that 
sum. It is however to be observed that the 
single divorce pronounced in thi* case is 
irreversible, as being given in lieu of pro- 
perty. 

IF a woman say to her husband, "divorce 
me thrice, upon my payim* you one thousand 
Dirms," and the husband give her one di- 
vorce, nothing is incumbent upon the woman, 
according to Haneefa, and the husband is at 
liberty to take her back. The two disciples 
say that a divorce irreversible, takes place in 
return for one third of the thousand Dirny* 
because the expression "upon payment of" 
is the same as the word, "for" in contracts 
of exchange. The argument of Haneefa is 
that the expression "upon pay merit" is a 
condition, and the thing conditioned cannot 
be divided according to the parts of the ^con- 
dition itself : contrary to the word "for" as 
that is used to express a return, and as the 
property is not due, divorce express (and 
consequently reversible) remains. 

IF a man say to his wife, "divorce yourself 
thrice, for (or upon payment of) one thou- 
sand Dirmsf" and she pronounce upon herself 
one divorce, no effect whatever takes place, 
because the husband is not desirous that she 
should become separated for any thing short 
of the whole sum specified ; contrary to a 
case where the propojal comes from the wife 
(as in the preceding instance), because, as 
she there appears to be desirous of procuring 
separation from her husband at the whole 
expense specified, it follows that she is wil- 
ling to procure it, at the third of that expense 
only, a fortiori. 

IF a man say to his wife, "you are divorced 
upon payment of one thousand Dirms/' and 
she agree, divorce takes place upon her, and 
the husband has a claim upon her for the 
thousand Dirms, in the same manner as 
where a man says, "you are divorced fora 
thousand Dirms," and the wife consents, in 
which case divorce takes place, and one thou- 
sand Dirms are incumbent upon her : but 
it is to be observed that in both cases the 
woman's assent is a condition, because the 
words of the husband, "you are divorced for 
one thousand Dirms," mean, "you are under 
divorce in return for one thousand Dirms 



BOOK IV. CHAP. VIIL ] 



DIVORCE. 



115 



due from you to me," and his words, "you 
are divorced upon payment of one thousand 
Dirms," mean "you are under divorce on 
condition that one thousand Dirms be due 
from you to me/' and the return cannot 
be made incumbent upon her without her 
assent ; moreover, a circumstance suspended 
upon a condition cannot take place until the 
condition be previously fulfilled, wherefore 
the effect in this case depends upon her 
agreeing to what is proposed. And here the 
divorce is irreversible, for the reason already 
stated. 

IF a man say to his wife, " you are 
divorced, and there is against you a thou- 
sand Dirms," and she consent, or, if a man 
say to his slave, "you are free and there is 
against you a thousand Dirms," and the 
slave assent, the slave is free, and divorce 
takes place upon the wife, but nothing 
remains incumbent upon either, according 
to Haneefa : the rule is also the same if 
they were not to assent. The two disciples 
say that the sum specified is incumbent upon 
them, where they assent ; but that, if they 
do not assent, neither divorce nor emanci- 
pation take place ; for they argue that the 
latter part of the husband's address is such 
as is used in bargains of exchange ; and a 
contract of Khoola, or of Kitabat, being a 
contract of exchange, is therefore to be con- 
sidered as such ; as in hire, for instance, 
where if a man say to another, "carry this 
burthen, and there is a Dirm for you," it is 
the same as if he were to say, " carry this 
burthen for a Dirm." To this Haneefa re- 
plies that the latter part of the sentence has 
a separate and detached sense, and there- 
fore is not be connected with the preceding 
part, unless there be something to sho<v that 
it is so ; but here nothing exists to evince 
such connexion , because divorce and manu- 
mission are frequently produced without any 
substantial return : contrary to cases of sale, 
or of hire, as neither of these are to be 
conceived without a substantial compensa- 
tion. 

A proposal of Khoola made to the wife, 
with a reserve of option to the husband, is 
invalid. IF a man say to his wife, " you are 
divorced fora thousand Dirms, on a con- 
dition of option to me (or, to you) for three 
days,*' and she consent, the option is invalid, 
where it is reserved to him, but valid where 
it is reserved to her ; and if she rejects his pro- 
posal within the three days, the Khoola is 
null : but if she do not reject it within that 
time, the divorce takes place, and the sum 
specified by the husband becomes incumbent 
upon her. This is the doctrine of Haneefa. 
The two disciples say that the option is null 
in either case, and that divorce takes place 
upon the woman, and the sum specified 
becomes incumbent upon her, because option 
is used for the purpose of dissolving a con- 
tract, or other agreement, after it has been 
concluded, and not for preventing the execu- 
tion of it ; and the act of the man, or of the 
woman, implying proposal on the part of 



the former, and acceptance on that of the 
latter, does not carry with it dissolution' on 
either part ; his proposal does not, as it is a 
Yameen, or suspending vow, on account of 
its involving a condition and a consequence 
(namely, the suspension of divorce upon the 
woman's consent) ; and a vow is in itself 
incapable of effecting dissolution ; nor does 
her acceptance, as that is the condition of 
the vow and as the vow is in itself inca- 
pable of effecting dissolution, so is the con- 
dition ; and such being the case, the reserve 
of option on either part null. The argu- 
ment of Haneefa is that Khoola on the part 
of the woman stands as a sale, since it is a 
transfer of property for a return, and accord- 
ingly, if it proceed first from the wife, by 
her saying to her husband, "divorce me in 
return for one thousand Dirms, on a con- 
dition of option to me (or, to youj for three 
days," and she afterwards retract before her 
husband signifies his consent, her retraction 
is approved, on which account it is restricted 
to that Majlis, or situation, and does not 
extend beyond it, that is, if she rise from 
her seat before her husband signifies his 
assent, it becomes null ; the condition of 
option in it therefore, when proceeding from 
the wife, is approved ; but when it proceeds 
from the husband, the condition of option 
is not approved, because it is then a vow, 
wherefore his retraction of it is not ap- 
proved, and it continues in force beyond the 
Majlis ; and as it is a vow on the part of the 
husband, he can have no option, since a vow 
does not admit of option. Let it be also 
observed that the case of a slave, with 
respect to manumission, is the same as that 
of a wife, with respect to divorce ; that is 
to say, manumission for a consideration is 
an exchange, on the part of a slave, that 
same as divorce for a return, on the part of 
a wife. 

The assertion of the husband respecting 
Khoola is to be credited. Iv a man say to 
his wife, " I yesterday divorced you for a 
thousand Dirms, but you did not consent," 
and the woman reply that she did con- 
sent, the assertion of the husband is to be 
credited : but if a man say to 'another, ' I 
yesterday sold you this slave for a thousand 
Dirms, but you did not consent," and the 
other reply that he did consent, the asser- 
tion of the purchaser is to be credited. The 
reason of the difference between these two 
cases is that divorce for a compensation is 
a vow, when proceeding from the husband, 
and his acknowledgment of his having made 
the proposal doe/ not necessarily imply an 
acknowledgment of the condition having 
taken place, as the vow holds good indepen- 
dent of that circumstance, whereas sale 
cannot be effected without the consent of 
the purchaser, and hence an acknowledg- 
ment of sale necessarily implies an acknow- 
ledgment of that circumstance without 
which sale cannot exist, namely, consent, 
and the seller's denial of that circumstance 
is a contradiction to his previous ackno^/- 



DIVORCE 



[VOL. I 



ledgment, and consequently not to be 
credited. 

A mutual discharge leaves each party with- 
out any claim upon the other. A MOBARAT, 
or mutual discharge (signified by a man 
gay ing to his wife, " I am discharged from 
the marriage between you and me," and her 
consenting to it), is the same as Khoola, 
that is to say, in consequence of the declara- 
tion of both, every claim which each had 
upon the other drops, so far as those claims 
are connected with their marriage. This is the 
doctrine of Haneefa. Mohammed says that 
nothing is done away bv either except what 
is particularly mentioned by both the husband 
and tl>e wife. Aboo Yoosaf unites with Mo- 
hammed, as to the Khoola, but with Haneefa 
as to the mutual discharge. The argument 
of Mohammed is that mutual discharge and 
Khoola are contracts of exchange, in which 
the circumstances specifically stipulated are 
also regarded, and not those which are not 
stipulated. The argument of Aboo Yoosaf 
is that the word Mobarat, from its gramma- 
tical form bears a reciprocal sense, and 
therefore requires that the discharge be 
equally established on both sides ; and this 
is general ; yet the discharge is in this case 
restricted to those rights connected with 
marriage, as the design proves it to be so ; 
but Khoola only requires that the woman be 
treed from the restraint of her husband ; and 
as that is obtained by the dissolution of the 
marriage, it does not retire that all its 
effects be terminated. The argument of 
Haneefa is that Khoola bears the sense of 
separation, and that i. ffe neral, the same as 
a mutual discharge, an d consequently mar- 
riage is thereby terminated, together with all 
its rights and effects, the same as bv a mutual 
discharge. 

Khoola entered into bv a father on behalf 
of his infant daughter is invalid. IF a father 
transact a Khoola with the husband of his 
mtant daughter, agreeing to pay the con- 
sideration out of her property, the Khoola is 

u-uu with r soect to her, because this 
exhibits no regard for her interest, as hey 
person is not a p prec i a ble in the dissolution 
or a marriage, whereas the consideration is 
so : contrary to marrige (as where a man 
contracts his infant diughter to another) for 

ai *.* valid, because the woman's person, on 
ad tl? 8 * nto a mar " a S e > i* appreciable : 
in th . Woman ' 8 person not beins appreciable 
a w T < ** 8S0 ^ ut >n of a marriage, the Khoola of 
as D S *k ^ a mor tl illness is considered 
but K^ eec * m 8 fr. m tr ** rc * f her property : 
ma . n S appreciable upon Intrance into a 
marr iage, if a man sick of a mortal illness 
were to marry a woman on a proper dower, it 
*f co nsidered as coming from the whole o f his 
pr ?Perty.~ The Khoola, therefore, being ille- 
* o > the dower of the infant does not drop. 
. f does the husband acquire any right to 
"f r property. There are two traditions with 
jjspect to the act of the father occasioning 
j vorce in this instance; according to one, 



other it does not ; the former, however, it th 
better opinion, because the Khoola is a sus- 
pension of divorce upon the consent of the 
father, which is the name as upon any othei 
condition. 

Unless he engage to hold himself res ponsib It 
for the compensation. IF a father transacts 
Khoola on the part of his infant daughter foi 
a certain sum, engaging to hold' himseli 
responsible for the payment, the Khoola ii 
valid, and the sum specified bacomes incum- 
bent upon him, because the engagement even 
of a stranger for the consideration of Khoola 
is valid, and consequently that of a father in 
superior degree : in this instance also the 
infant's dower does not drop, as the father 
has no authority with respect to the relins 
quishment of it. 

Or refer it to his daughter's consent. 
AND if the father were to stipulate that hii 
daughter is to be responsible for the sum 
specified, this will depend upon her con- 
sent where she is competent (that is, capable 
of comprehending the nature of her situation 
and that of the present transaction, and pro- 
nouncing upon them) ; and if she consent, 
divorce takes place, on account of the con- 
dition being fulfilled upon which it is sus- 
pended : but the sum specified (or considera- 
tion) is not incumbent upon her, as an infant 
is incapable of undertaking the discharge of 
any pecuniary obligation : and if the father 
consent pn his daughter's behalf, there are 
two traditions concerning it ; according to 
one, divorce does not take place until she 
shall exentually express her consent ; and 
according to another, divorce takes place 
independent of it ; but here the compensa- 
tion agreed for is not incumbent upon her at 
ail events. And in the same manner, if a 
father, transacting a Khoola on the part of 
his infant daughter, agree that the compen- 
sation shall' consist of her dower, and he 
happen not to be surety for the same,* the 
validity of the Khoola depends upon the 
daughter's consent, which if she declare, 
divorce takes place ; but yet her dower does 
not drop : and also, if the father consent 
on his daughter's behalf, there are two tra- 
ditions concerning it, as already stated : if 
however, he be surety for the dower, amount- 
ing to one thousand Dirms (for instance), 
divorce takes place, because the condition 
(namely consent) is existing ; and five hun- 
dred Dirms only are incumbent upon him, 
according to a favourable construction of the 
law. Analogy would suggest that he is liable 
for the whole thousand, upon this ground, 
that where an adult woman transacts Khoola 
on her own behalf, before consummation of 
marriage, for any specified sum (say one 
thousand Dirms), and her dower be also one 
thousand, the whole sum is incumbent upon 
her, and is discharged by five hundred drop- 
ping from her dower, an8 her paying the 



See Book of Marriage, Chap. HI, 



BOOK IV. CHAP. IX.] 



DIVORCE, 



117 



other five hundred out of her own property : 
but according to the more favourable con- 
struction of the law, nothing whatever is 
incumbent upon her, because the intent of 
the husband, in the transaction, is merely 
to free himself from the obligation of her 
dower ; and this end being obtained, nothing 
beyond that remains incumbent upon her. 



CHAPTER IX. 

OF ZIHAR 

Definition of the terms. THE word Zihar 
is drived from Zihr, the back. In the lan- 
guage of the law it signifies a man comparing 
his wife to any of his female relation, within 
such prohibited degree of kindred, whether 
by blood, by fosterage, or by marriage, as 
renders marriage with them invariably un- 
lawful. as if he were to say to her [by a 
peculiarity in the Arabic idiom], "you are to 
me like the back [Zihr] of my mother/' It 
is essential to Zihar that the person compared 
be the wife of the speaker, insomuch that 
Zihar does not apply to a female slave ; and 
competency to pronounce Zihar appertains 
only to one who is a Mussulman, of sound 
mind, and mature age, that pronounced by a 
Zimmee or an infant being nugatory ; and its 
effect is to prohibit the person who pronounces 
it from carnal connexion with his wife, until 
he shall have performed an expiation. 

Zihar prohibit! carnal connexion until ex- 
piation. IF a man say to hit wife, ^you 
are to me like the back of my mother, she 
[the wife] becomes prohibited to him, and his 
carnal connexion with her is unlawful, as 
well as every other conjugal familiarity, 
until he perform expiation for the; same as 
is enjoined in the sacred writings. 

Natute and duration of Zihar. In tirnes 
of ignorance (that is, before the establish- 
ment of the Mussulman faith), Zihar stood 
as a divorce ; and the law afterwards pre- 
served its nature (which is prohibition), but 
altered its effect to a temporary prohibition, 
which holds until the performance of ex pia- 
tion, but without dissolving the marriage. 
The reason for this is that Zihar is an offence, 
as being a declaration founded upon a false- 
hood, and which amounts to a disowning or 
denying of the wife ; and therefore finds its 
proper punishment in her being rendered un- 
lawful to him whp pronounces it, by a pro- 
hibition which cannot be removed but by his 
performing expiation : and as carnal con- 
nexion b x comes prohibited by Zihar, so do 
all its accompanying privileges, such as 
kissing, touching, and other familiarity, lest 
t he husband be tenrpted toth* commission of 
the carnal act ; in the same manner as is the 
rule with respect to relations within the 
prohibited degrees, with whom net only the 
carnal act itself, but also every familiarity 
which leads to the commission of it, are pro- 



hibited : contrary to that respecting women 
fasting, or in their courses, with whom 
although the commission of the carnal act 
itself be prohibited, yet other liberties are 
not so, as those situations are perpetually 
recurring to them and if such a rule were 
to hold, it would operate as an almost con- 
tinual restraint upon them ; whereas, with 
respect to women under Zihar, or within the 
prohibited degrees, this is not the case. 

// the prohibition occasioned by Zihar be 
violated, yet no additional penalty is in- 
curred. IP a man, having produced Zihar 
upon his wife, have carnal connexion with 
her before he make expiation, it behoves 
him to respect and pray forgiveness from 
GOD ; but nothing is incumbent upon him, 
except the expiation on account of his Zihar, 
as before, and that he refrain from any re- 
petition of the carnal act with her until he 
perform such expiation, because it is re- 
lated of the Prophet that he thus commanded 
one who had committed the carnal act with 
his wife after Zihar, and before expiation 
from which tradition it appears that nothing 
more is incumbent (in consequence of the 
commission of the carnal act before expia- 
tion), for if it were so, the Prophet would 
somewhere have mentioned it. 

Zihar cannot occasion divorce. LET it be 
observed that from the words of the husband, 
"you are to me like the back of my mother," 
nothing but Zihar is established, because 
the term employed expressly signifies Zihar ; 
and if he should intend divorce by it, yet 
that does not"take place, as the law of di- 
vorce is broken through in this particular.* 
and consequently Zihar does not admit of 
divorce being intended by it. 

Zihar is ei tab/ i shed by a comparison with 
any part of the body which implies the whole 
person. IF a man say to his wife, "you are 
to me like the belly of my mother," or "the 
thigh/' or "the pudendum," Zihar is 
thereby established, as Zihar signifies the 
likening of a woman to a kinswoman within 
the prohibited degrees, which interpretation 
is found in the comparison being applied to 
any of the parts or members improper to 
be seen. And Zihar is in the same manner 
established, by the likening of the wife to 
any other kinswoman within such prohibited 
degree as that marriage with them is at all 
times unlawful, such as sisters, and aunts, 
and foster-mothers, who are invariably pro- 
hibited, as well as a natural mother. And 
so also it a man say to his wife, "your head 
is to me like the back of my mother/' or 
"your pudendurm" or "your waist/' be- 
cause by thsse the whole person is figura- 
tively expressed ; and so also if he were to 
say, "your half or your third," because 
in this case the effect is established in a 



That is to say, Zihtr has been made, by 
the law, a thing distinct and separate from 
divorce, and subject to a rule peculiarly ap- 
plicable to itself. * 



118 



DIVORCE. 



diffusive portion* and consequently extends 
to the whole person, because, as the diffusive 
portion of any thing is a proper subject of 
all other acts such as purchase, sale and 
so forth, so is it of divorce; but divorce 
being incapable of division, is necessarily 
established in the whole person : and as 
Zihar resembles divorce it therefore, like 
divorce, extends to the whole also. 

A general comparison takes effect accord- 
ing to the husband's explanation. WHERE a 
man says to his wife, "you are to me like 
my mother," it is requisite that his intension 
be examined into, so as to discover the true 
predicament in which the wife stands ; and 
if he declare that his meaning was only to 
show respect to his wife, it is to be received 
according to his explanation, because in 
speech respect may be expressed by a general 
comparison ; or, if he declare his intention, 
to have been Zihar, that is accordingly estab- 
lished, for here appears a comparison with 
the whole person of his mother, in which her 
back is included : but as that is not expressly 
mentioned, the speaker's intention is requi- 
site to establish it ; and if he declare his 
intention to be divorced, a divorce irreversible 
takes place, as his comparing his wife with 
his mother is likening her to one who is pro- 
hibited to him, and is therefore the same as 
if he were to say, "you are prohibited to 
me," thereby intending divorce ; but if he 
declare that he had no positive intention 
neither Zihar nor divorce are established 
(according to Haneefa and Aboo Yoosaf), 
because the address bearing the construction 
of respect, must here betaken in that sense, 
as being of less importance than any other. 
Mohammed says that Zihar is established 
independent of intention, because a com- 
parison of the wife with a limb or member 
of the mother occasioning Zihar, it follows 
that, where it is made with the whole, Zihar, 
is established a fortiori. With Aboo Yoosaf 
if the intention of the husband be merely 
prohibition, an Aila only is established, 
because the prohibition by Aila is less rigo- 
rous than by Zihar. With Mohammed, on 
the contrary, Zihar is established : his argu- 
ment is taken from the Arabic. 

And the same of a comparison in point of 
prohibition. IF a man say to his wife, "you 
are to me prohibited, like my mother," in- 
tending either Zihar or divorce, it takes effect 
according to his intention, as this address 
may be taken in either sense, in that 
of Zihar, as being a comparison, and in 
that of divorce, as expressing prohibition; 
strengthened by the comparison. In this 
case; however, if he have no intention, accord- 
ing to Aboo Yoosaf, Aila is established,- 
and, according to Mohammed, Zihar, as in j 
the preceding case And if he say, "you 
are to me prohibited like the back of my i 
^ .~ . - ~- } ,^. . - . . ^ 

*Joozoo Shae is here rendered a diffusive > 
portion, in opposition to Joozoo Mayeen a ' 
particular or specified portion, 



mother," and thereby intend divorce or Aila, 
yet nothing but Zihar is established, accord- 
ing to Haneefa. The two disciples say that 
whatever he may intend is established, as 
prohibition equally implies either Aila or 
divorce ; according to Mohammed, however 
where divorce is the intention, no Zihar 
is established ; whereas, according to Aboo 
Yoosaf, divorce and Zihar are both estab- 
lished together (that is, divorce is estab- 
lished on account of the intention, and Zihar 
on account of the term Zihr [back] being 
expressly mentioned, as was stated in its 
proper place) The argument of Haneefa 
is that the words above recited expressly 
signify Zihar, and therefore do not b. ar any 
other sense ; and the word prohibited, which 
is introduced there, relates solely to the pro- 
hibition by Zihar, as prohibition is of various 
kinds of which that by Zihar is one, and is 
on this occasion preferred, on account of the 
accompanying comparison with the back of 
the mother , and all other kinds of prohibi- 
tion being only constructive, and that by 
Zihar positive, the prohibition to which the 
word "prohibited" alludes, is to be taken as 
relating to the Zihar only. 

Zihar. has no effect upon any but a wife, 
ZIHAR is not established with respect to any 
but the wife of the speaker, insomuch that if 
a man pronounce a Zihar upon his female 
slave, it has no effect for various reasons. 
FIRST, GOD has said, "MEN WHO PRO- 

NOUNCE ZIHAR UPON THEIR WOMEN/' . 

where, by women is understood wives ; 
secondly/ the legality of a female slave is 
of a secondary or dependent nature, and 
that of a wif of a primary or original 
nature, and hence those two , persons must 
not be confounded ; TmRDLY, Zihar is an 
imitation of divorce, and divorce does nol 
take place upon a slave. 

IF a m^n marry a woman without her 
consent, and pronounce a Zihar upon her 
before that be obtained, and she afterwards 
signify her consent, the Zihar is void, 
because the husband, in making the com- 
parison, said no more than what was at that 
time strictly true, and hence what he says 
does not amount to a disowning or denying 
of her. 

OBJECTION. It would here appear that 
the validity of the Zihar remains suspended 
upon the woman's consent to the marriage, 
in the same manner as the manumission of 
the purchaser of a slave from an usurper 
rests upon the consent of the proprietor (that 
is to say, where a person purchases a slave 
of the usurper of him > and emancipates him, 
the validity of his emancipation depends 
upon the proprietor's assenting to the sale), 
because Zihar is a right of possession by 
marriage, in the same manner as manu- 
mission is a right' of possession by right, of 
property. 

REPLY. The validity of the Zihar is not 
suspended upon her consent of. the .marriage, 
because Zihar is not one of the rights of 
marriage, as it has no place in the ordinances 



BOOK IV.-CHAP, IX,] 



DIVORCE. 



of the law,* whereas matrimony has a place 
in them, and that which is not of the law is 
incapable of appertaining as a right to that 
which is one of its ordinances ; contrary to 
the case of manumission proceeding from the 
purchaser of a slave out of the hands of his 
usurper, as manumission is a right of pro- 
perty. 

Zihar collectively pronounced takes place 
upon every individual to whom it is addressed. 
WHERE a man addresses all his wives col- 
lectively, saying, "ye are to me as the back 
of my mother," Zihar is established with 
respect to every one of them, he having on 
this occassion applied the Zihar to them all 
indiscriminately, as in divorce, where if a 
man direct a sentence of divorce to the whole 
of his wives collectively, it takes place upon 
the whole. And here an expiation is incum- 
bent upon him, on account of each wife 
respectively, because prohibition has been 
established with respect to each ; and expia- 
tion is ordained for the purpose of terminating 
and abolishing the prohibition ; and where 
that is numerous the expiation must be so 
likewise, according to the number of pro- 
hibition ; contrary to a case where a man, 
pronounce an Aila (or vow of four months' 
abstinence from carnal connexion) upon all 
his wives collectively, and break his vow 
by having carnal knowledge of them within 
the four months, for here a single expiation 
only is incumbent upon him, because in this 
case expiation is incumbent upon him, out 
of respect to the honour and greatness of the 
name of GOD ; and his name, in a vow of 
Ali, is mentioned once only, as it is pro- 
nounced by the man saying to all his wives, 
"by GOD I will not have carnal connexion 
with you." 

Section. 
Of Expiation. 

A Zihar may by expiated by the 1 emanci- 
pation of a slave t &c. THE expiation of a 
Zihar may be effected by the emancipation of 
a slave ; or if, from not being possessed of 
such slave, this mode be impracticable, it 
may be effected by a fast of two months 
successively'! or if the state of the health 
do not admit of such fast, by the ditribu- 
t ion of victuals to sixty poor men: becaui" 
a passage which occurs in the Koran, re- 
specting expiation, demonstrates the obliga- 
tion of performing it in one or other of those 
ways : but the expiation is supposed to pre- 
cede a man's touching his wife, after having 
pronounced a Zihar upon : in expiation by 
manumission or fasting this is evident, be- 
cause the text relates to that ; and so also 



*That is there are no particular rules 
instituted for it in the Koran, the laws re- 
specting it being taken from the Sonna 

t By Sawm, or fasting is here and else- 
where understood an abstinence from food 
and every carnal enjoyment from the rising 
to the setting sun of each day, within the 
prescribed term. 



in expiation by the distribution of victuals 
to the poor ; because by expiation prohibi- 
tion is terminated, wherefore it is necessary 
that the expiation be first made in orde* 
that carnal connexion may be lawful. 

The emancipation of a slave of any descrip- 
tion suffices. IT suffices for an expiation that 
a slave be released, whether that slave be an 
infindel or a Mussulman, an infant or an adult 
a male or a female, because the word Rakba, 
in the Koran, applies equally to all of these, 
as it signifies one who is possessed, in right 
of property, by another, under any descrip- 
tion whatever. Shafei says that the eman- 
cipation, of an infidel does not suffice as an 
expiation, because this is a right of GOD, 
which cannot lawfully be expended upon 
one who, as being an infidel, is his enemy ; 
like Zakat, which is a right of GOD, and the 
disbursement of which upon infidels, as being 
the enemies of GOD, is therefore illegal. 
To this our doctors reply, that the emancipa- 
tion of a slave [Rakba] is what is mentioned 
in the text, and that is fulfilled by the manu- 
mission of an infidel * and as to what Shafei 
advances, of expiation being a right of GOD, 
and therefore not to be expended upon his 
enemies, it may be replied that the intention 
of the expiation is to render the slave equal 
to the fulfilment of such duties as relate to 
GOD, that is to say, of Zakat, pilgrimage, 
bearing evidence, fighting for the faith, 
magistracy, and so forth ; and if the slave 
be not a Mussulman, and continue an infidel 
after manumission, thereby enhancing his 
crime of infidelity, and precluding himself 
from receiving those advantages which he 
was qualified to enjoy through his freedom, 
it is to be attributed to the error of his choice, 
and not to any defect in the act of the 
expiator. . . 

Unless such slave be defective in one of his 
faculties IT is not sufficient, as an expiation, 
to emancipate a slave who is blind, or maimed 
of both the fellow- members, whether hands 
or feet, because here such a slave is utterly 
deprived of one of his bodily endowments 
either of seeing, carrying, or walking, and 
th privation of any one advantage in a slave 
renders the manumission of him insufficient 
as an expiation, sm-e a person in such a 
state is accounted dead : but where the 
privation is not entire it does not forbid the 
validity of the expiation, and hence it suf- 
fices for that purpose to emancipate a slave 
who is blind of one eye o maimed of one hand 
or foot, or of a hand andr foot, from opposite 
sides as this am junto noufrto an absolute pri- 
vation of one of t^e aHva ages, but only to a 
defect : the case, however is otherwise where 
he is maimed of a hand an foot upon the same 
side for in this case his emancipation would 
not suffice, as this amounts to a privation of 
the advantage of walking, since, without 
the assistance of the hand upon the lame 
side, that is impracticable. 

The emancipation of a deaf slave suffices. 
IT suffices, as an expiation, to emancipate is 
deaf slave Analogy would suggest that thSs 



120 



DIVORCE 



[VOL. I. 



is not sufficient, as the slave ia here deprived 
of one faculty; but it is admitted as suf- 
ficient, upon a favourable construction of 
the law, as the radical faculty still continues, 
since one who is considered as deaf may yet 
be capable of hearing what is spoken aloud : 
if, however, he cannot hear at all (as where 
a person is born perfectly deaf), his eman- 
cipation does not suffice. 

But not that of one who has lost both his 
thumbs- IT does not suffice, as an expiation, 
to emancipate a slave who has lost both his 
thumbs, as his power of carrying, which is 
one of his bodily endowments, is in that case 
destroyed. 

Or who is insane NEITHER does it suffice 
to emancipate a slave who is insane, because 
no use is to be derived from the members of 
the body unless they be informed with reason, 
and therefore a privation of reason amounts 
to a privation of all the corporal endowments. 
Unless it be an occasional insanity only, 
BUT if the slave be one who is insane only 
at intervals, his freedom suffices for an expia- 
tion, as this circumstance is not an utter 
privation of the faculty, but only a defect in 
it, which does not prevent the sufficiency. 

Nor of a Modabbir, or Am-Walid or 
Mokatib, u.ho has paid part of his ransom. 
IT does not suffice, as an expiation, to 
emancipate a Moddabir, or Am-Walid, as 
such are eventually entitled to their freedom, 
and hence their bondage is incomplete ; and 
so also of a Mokatib who has fulfilled his 
contract of Kitabat in part, because in this 
case his freedom must be accounted as in 
return for the part of his ransom already 
received, and consequently does not suffice 
for an expiation, as that is an act of piety, 
in which speciality is essential It is recorded 
as an opinion of Haneefa that the release of 
this Mokatib is sufficient, as bondage is found 
to exist in him in every shape, and accord- 
ingly the contract of Kitabat admits of being 
annulled ; contrary to Am-Walids and Mo- 
dabbirs, as a Tadbeer or Isteelad cannot be 
cancelled. 

IF a person who pronounces Zihar emanci- 
pate, for expiation, a Mokatib who has not 
paid any part of his ransom, it suffices. 
Shafei says that it does not suffice, because 
the Mokatib is a claimant of freedom, in 
virtue of the contract of Kitabat, and is 
therefore the same as a Modabbir, The 
argument of our doctors is that ^bondage 
exists in a Mokatib in every shape, because 
the contract of Kitabat is capable of annul- 
ment ; and also, ^because the Prophet has 
declared "a MOKATIB is a slave as long as 
a single DIRM remains due*from him." 

That procured for a parent or child suf- 
fices. If a man purchase his father or his son 
intending expiation thereby, it suffices. 
Shafei says that it does not suffice ; the 
same difference of opinion subsists in the case 
of expiation of a Yameen, as shall be recited 
at i&rge in treating of vows. 

But not that of a share in a coparcenary 
e, IF a man/ being rich, emancipate his 



half of a coparcenary slave, and then indem- 
nify his partner for the value of the remainder, 
this does not suffice for an expiation with 
Haneefa. The two disciples hold that it 
suffices, because the expiator, becoming pos- 
sessed of his partner's share by indemnifying 
him, does in effect emancipate a slave who is 
entirely his own property : but it were other- 
wise if the expiator be poor, as in this case 
it is incumbent upon the slave to perform 
Siayet, or emancipatory labour, for the part- 
ner's share ; and hence the emancipation 
is, so far, for a return. The argument of 
Haneefa is that in this case the emancipation 
is defective in the proportion of the partner's 
share, until the transition of the property 
is it to the emancipator be effected by his 
indemnifying the other partner, and this 
circumstance forbids its sufficiency for an 
expiation. 

The partial emancipation of a sole slave 
(when followed by the emancipation of the 
remainder) suffices. IF a man emancipate 
half of his own slave, as an expiation, and 
afterwards emancipate the remainder for the 
same purpose, it suffices, as this amounts to 
no more than emancipating him by two sen- 
tences instead of one ; and the defect which 
appears in the second half on account of the 
first half being already free is not regarded, 
since this defect has been induced upon the 
expiator's property, in consequence of his 
emancipating it on account of expiation : 
and a defect like this is not regarded ; but is 
considered in the same light as when a man 
having thrown a goat on its side for the 
purpose of sacrifice, happens to direct his 
knife in the animal's eye, so as to render it 
defective, which is not regarded, the sacrifice 
of the goat being still lawful, as the defect 
has befallen the property on account of 
sacrifice : contrary to the preceding case, 
because there the defect appears in the 
property-of the other partner. This proceeds 
upon the tenets of Haneefa. W ith the two 
disciples manumission is indivisible, and con- 
sequently the emancipation of an half is, in 
effect, the emancipation of the whole slave, 
so that it is not considered in that instance 
as proceeding from two sentences. 

But not if carnal connexion take place 
between the two emancipations. IF a man 
emancipate half his slave, as an expiation 
of Zihar, and then have carnal connexion 
with the wife upon whom he had pronounced 
the Zihar, and afterwards emancipate the 
other half, it is not valid as an expiation, 
according to Haneefa, because he holds 
that manumission admits of division, and 
the condition of its sufficiency, in the sacred 
writings, is that it be performed before the 
man touch his wife ; but here the emancipa- 
tion of one half takes place after touching. 
With the two disciples, on the contrary, the 
emancipation of an half amounts to an 
emancipation of the whole, wherefore the 
emancipation in this case appears to take 
place upon the whole ; before touching. 
; Zihar may be expiated by fasting two month 



BOOK IV. CHAP. IX.) 



DIVORCE. 



121 



IF the person pronouncing a Zihar be not 
possessed of a slave, his expiation may be 
made by fasting for two successive months, 
provided those do not include the Ramzan, 
nor the festival of Fittir,* nor the days of 
Nihrf or Tashreek.J The fast must be suc- 
cessive (that is, uninterrupted), because it is 
thus expressed in the text ; and it is a 
condition that the Ramzan be not included, 
because the abstinence observed in that period 
is not counted in expiation ; for if it were to 
be so counted, this would in effect induce the 
annulment of a thing ordained by GOD ; and 
it is also a condition that the festival of 
Fittir, and the days of Nihr and Tashreek, 
be not included, as (these being ordained 
festivals) any extraordinary abstinence in 
them is forbidden. 

But if carnal connexion take place during 
the fast, it must be commenced de novo. IF 
the expiator, either wilfully or through for- 
getfulness, in the night, or, from the latter 
cause, in the day time, should during the 
term of expiation have carnal connexion with 
the wife upon whom he had pronounced the 
Zihar, he must again begin the fast anew, 
according to Haneefa and Mohammed. Aboo 
Yoosaf says that it is not incumbent upon 
him to begin it again, as his connexion with 
the wife does not amount to an interruption 
of the fast, since that is not broken by it ; 
and if it be said that one condition of the 
fast is that it precede touching, it may be 
replied that a compliance with that injunction 
is here rendered impossible ; he therefore 
holds that it must in this case suffice that a 
part of it precede touching, for 'if the fast be 
commenced anew (as in the doctrine of 
Haneefa and Mohammed), if follows that the 
whole would be subsequent to touching. 
The argument of Haneefa and Mohammed is 
that the conditions of making expiation by 
fast are twofold ; one, that the fast precede 
touching ; another, that the twcv months be 
exempt from touching ; and the second of 
these being violated by the connexion, the 
circumstance with respect to which the con- 
dition was made is not fulfilled, and therefore 
the fast must be commenced anew, because 
though the observance of the first condition 
be now rendered impossible, yet still it remains 
in his power to perform the expiation in such 
a way as may fulfil the second condition of 
it. 

IF the expiator wilfully break his fast in 
the day time, within the two months, either 
with or without excuse, he must commence 
it anew, according to all the doctors, as this 
is an interruption of the fast, a condition of 
which is that it be for two months succes- 



*The day of breaking Lent, 

fThe day of sacrifice, being the tenth of 
the month Zooal Hidjee when the pilgrims 
assemble at Mecca. 

JThe true sense of Taahreek (as here ap- 
plied) the translator has not been able to 
discover. 



sively ; and this being still in his power it is 

therefore incumbent upon him. 

Fasting the only mode in which a slave can 
expiate Zihar. IF a slave pronounce a Zihar 
upon his wife, a fast of two months succes- 
sively is the only mode of expiation which is 
allowed him, because he is incapable of 
possessing any thing in his own right as a 
proprietor, and consequently cannot expiate 
in any other way. And here, if the owner 
of this person were to release another of his 
slaves, or to distribute victuals to sixty poor 
men, on his behalf, yet it does not suffice, 
as a slave, being incapable of possessing 
property, cannot be regarded as a proprietor, 
from his master's consignment or transfer of 
it. 

Zihar may be expiated by the distribution 
of alms. IF the person pronouncing a Zihar 
be incapable of observing a fast (from the, ill 
state of his health or other cause), it is in- 
cumbent upon him to give victuals to sixty 
poor men, GOD having said, "WHERE A 

MAN CANNOT FAST, LET HIS EXPIATION BE 
MADE BY DISTRIBUTING VICTUALS TO SIXTY 

POOR MEN." By the term victuals is here 
understood half a Saa* of wheat, or one 
Saaf of barley or dates, or the value thereof 
in money ; because the Prophet has said, 
"for each pauper there is half a SAA of 
WHEAT ;" and also, because regard is here 
had to the removal of want from each for 
one day, and consequently the proportion to 
each is determined by the Sadka Fitter, or 
alms given on the festival breaking Lent. 
Observe that what is here said, "or the value 
thereof in money," is the opinion of our doc- 
tors, as has been related at large in the book 
of Zakat. And if the expiator bestow one 
Man J of wheat, or two Mans of Barley, or 
dates upon the poor, it suffices, since this 
fulfils the design, as wheat and barley are 
of one and the same genus or nature, in 
respect to food, and consequently to com- 
pensate the defect in one grain by an addi- 
tion of the other is lawful : contrary to a 
case where a man fasts, and at the end of 
a month becomes incapable of continuing 
the fast, on account of sickness, for here the 
expiation would not be effected by giving 
victuals to thirty paupers, because fasting 
and victuals are not homogeneous, and con- 
sequently the completion of one by means of 
the other is insufficient. 

IF the person pronouncing a Zihar desire 
another person to distribute the victuals for 
him as an expiation, and the latter do so, 
it suffices, as this amounts to borrowing so 
much ; and the pauper to whom the person 
so commissioned gives the victuals appears 
first to make seisin of them in behalf of the 
expiator, and then to receive them on his 
own account ; thus the expiator is first 



About four pounds, 
t About eight pounds. 
{About eighty pounds. 



122 



DIVORCE. 



JVOL 



r. 



seised of the property, and then makes it 
over to the pauper. 

IF the pronouncer of a Zihar feed c ixty 
paupers morning and evening it suffices, 
where they are filled, whether they eat more 
or less. Shafei says that this does not 
suffice, as it is requisite that the victuals he 
regularly consigned to sixty poor men, the 
same as in Zakat and Sadka Fitter, because 
in consigning, their wants are more effect- 
ually relieved than by feeding, which is only 
an act of permission, and consequently can- 
riot stand for consignment. The argument 
of our doctors is that the word Itaam, or feed- 
ing is what is mentioned in the text, and the 
literal meaning of that is to give a power 
over food, which is found in permitting to eat, 
the same as in consignment: but in Zakat 
and Sadka Fitter ; consignment is essentially 
requisite, and mere permission does not 
suffice, because there the gift is incumbent, 
and by gift, consignment is understood. -In 
short, with respect to whatever is mentioned 
in the sacred ordinances of the law under 
the term victuals, permissfon is sufficient ; 
but in what is mentioned under the terms of 
gift or payment, consignment is a condition. 
IF among the sixty paupers thus fed 
morning and evening there by an infant 
newly weaned from the breast, it does not 
suffice, as the expiation ii not in that case 
completely performed, a child of this de- 
scription not being yet able to eat a full pro- 
portion of victuals. 

WITH barley-bread it is requisite that some 
provision be bestowed such as it is usual to 
eat with bread, as the appetite cannot be 
satisfied with that alone ; but with wheaten- 
bread this is unnecessary. 

IF victuals be given to one pauoer for 
sixty days, it suffices, because the relief of 
want is what is required, and want recurs 
every day, wherefore giving it to the same 
person a second dav amounts to giving it to* 
a second pauper. But if the victuals for sixty 
be given at once to a single pauper, it does 
not suffice : yet if thev be given to him at 
sixty separate times within the day it suf- 
fices, according to ome ; but others allege 
that it does not suffice. 

Carnal connexion during expiation bv a/m? 
does not require that the alms be distributed 
anew. IF the person pronouncing a Zahir 
have carnal connexion with his wife within 
the time of his performance of expiation by 
alms, as above, still it is not necessary that 
he should recommence, as it is not set forth 
aa a condition in the word of GOD that this 
"species of expiation should precede touching ; 
but it nevertheless behoves him not to touch 
her until he shall have made expiation, as 
it is possible that in the interim he may be 
enabled to perform that by the manumission 
of a slave, or by fasting for two months, in 
which case this would induce expiation by 
those methods after touching, contrary to the 
injunction of the text. 

IF a man, as an expiation for two Zihars, i 
distribute to each of sixty paupers a double 



proportion of victuals (suppose one Saa of 
wheat to each), yet this does not suffice for 
more than one Zihar, according to the two 
Elders. Mohammed tays it suffices for both. 
But if the victuals be bestowed in this way 
upon sixty paupers, as an expiation for the 
breach of a fast, and for Zihar, it suffices for 
both. The argument of Mohammed is that 
what is bestowed upon the paupers aforesaid 
suffices for the performance of both expia- 
tions, and the persons upon whom it is 
bestowed are also proper subjects of both 
expiations, and consequently the act is effect- 
tual for two expiations, in the same manner 
as where the occasions of expiation are dif- 
ferent (as in the case of expiation for a 
breach of fast and a Zihar), or where the 
expiations are separately performed. The 
argument of the two Elders is that the inten- 
tion, where things are of one and the same 
nature, is nugatory : but regard is had to it, 
when things are different in nature, because 
a respect to intention is ordained, for the 
sake of distinguishing between different 
things ; and hence, if antonement were due 
from a person for the neglect or omission of 
two days' fast, in the month of Ramzan (a 
Thursday and a Friday for instance), and 
the person by fasting afterwards two davs 
intend atonement, it suffices although the 
days on which he thus fasts be not the same 
with the days of omission, because the thing 
is essentially the same ; contrary to where a 
person owes one day's fast for atonement, 
and another day's fast in pursuance of a 
vow, for then a distinction is necessary, 
because of the difference between the things ; 
now as the intention, where the things are 
of the same nature, is nugatory, and as the 
thing bestowed is capable of constituting a 
single expiation only (because half a Saa of 
wheat to each pauper is ordained as the 
smallest amount sufficient towards expiation, 
whereforelhe expiation is vitiated by being 
under, but not by exceeding, the prescribed 
quarttity), it follows that the distribution of 
victuals as aforesaid is effectual towards one 
expiation onlv, the same as where a single 
expiation only is intended : contrary to 
where the victuals are bestowed at separate 
times, because giving a second time is the 
same as giving to another pauper. 

IF the man upon whom two expiation of 
two Zihars are thus incumbent emancipate 
two of his staves, it suffices, although he 
have no specific intention as to either the 
slaves or the Zihars, respectively ; and in 
like manner, if he fast for four months, 
or distribute victuals to one hundred and 
twenty paupers, it suffices, because, as the 
thing is the tame, specific intention is not 
requisite. 

IF moreover, this man emancipate a single 
slave in part of expiation of two Zihars, it 
rests with him to specify to which of the two 
he intends the manumission of that slave to 
apply : but if he were thus to emancipate a 
slave in part of expiation of a Zihar, and of 
a Murder, it is invalid with respect to either. 



BOOK IV.-CHAP. X.] 



DIVORCE. 



123 



Ziffer says, that the emancipation of a single 
slave is totally ineffectual in either case. 
Shafei, on the other hand, maintains that it 
is equally efficient in both cases, the speci- 
fication resting with the expiators, because 
all expiations are of one and the same 
nature with respect to their end, which is 
the covering of criminality, but as intention 
with respect to things similar in nature, is 
unavailable, the simple intention remains ; 
and as (if that were expiation) the expiatior 
is at liberty to specify to which expiation 
the act is to apply, so here also. The argu- 
ment of Ziffer is that the expiator in this 
case appears to have emancipated half his 
slaves on account of one Zihar, and the other 
half on account of the other Zihar. and con- 
sequently, that he is not at liberty after- 
wards to specify his emancipation as apply- 
ing to either Zihar in particular, after having 
granted it as applying to both, since he then 
possesses no further option. Our doctors 
argue (with Shafei) that specification, with 
respect to things similar in nature, is unavail- 
able, and consequently nugatory, wherefore 
simple intention remains ; but where things 
arc different in nature (such as the eman- 
cipation of a sfave, as an expiation for Zihar, 
and also for homicide), the specification of 
intention is available ; and the intention 
being approved, the emancipation 'of the 
slave does not apply wholly either to the 
expiation for Zihar o r to the expiation for 
homicide.~As to what Shafei advances, 
that all expiations are of one and the same 
nature, in regard to their end, it may be 
replied that a" difference of nature between 
the expiations, in the present case, subsists 
in regard to the different occasion of them, 
although in respect to their end they be of 
one and same nature. 



CHAPTER X. 

OP LAAN, OR IMPRECATION 

Definition of the term. LAAN, in the lan- 
guage of the law, signifies testimonies con- 
firmed by oath, on the part of a husband 
and wife (where the testimony is strength- 
ened by an imprecation of the curse of GOD, 
on the part of the husband, and of the wrath 
of GOD on the part of the wife), in case of 
the former accusing the latter of adultery. 

A man accusing his wife of whoredom must 
verify his charge by an imprecation. IP a 
man slander his wife (that is to say, accuse 

u^L whor /, dom) ' or denv the descent of a 
child born of her by saying, 'this is not my 
child, and she require him to produce the 
ground of his accusation, imprecation is 
incumbent upon him, provided both parties 
be competent in evidence (that is, of sound 

"&- tdlllli u rcc ,' a ? d Mussulman*,) and 
that the woman be of a description to subjects 
her slanderer to punishment (that ii. mar. 



ried,*) for if she be not such (as if she have 
been for instance, enjoyed under an invalid 
marriage, or delivered of a child whose father 
is unknown), the man is not under any ob- 
ligation to make an imprecation, although 
she be a person competent in evidence. 

Conditions under which the imprecation is 
imcumbent. LAAN, according to the tenets 
of our doctors, is a testimony confirmed by 
oath, as was before observed ; and it in- 
volves, on the part of the husband, if his 
accusation be false, the CURSE of GOD, which 
stands as a substitute of punishment for 
slander ; or, on the part of the woman, the 
wrath of GOD, which stands in the place of 
punishment for whoredom, if it be true : 
it is therefore requisite that the parties be 
both competent in evidence, as the ground 
thereof is testimony ; and it is also requisite 
that she be of a description to subject her 
slanderer to punishment, as the Laan, with 
respect to the husband, stands as a substi- 
tute of punishment for slander (whence the 
necessity of her being a married woman) : 
and Laan is incumbet on account of the 
denial of a child, because the husband, in 
denying the child's descent, accuses his wife 
by implication. 

OBJECTION. The denial of the child's 
descent does not positively imply an accu- 
sation of the wife, as it is possible that the 
child may not have been begotten by the 
husband, and yet that the wife is not an 
adul tress (as where a man, for instance, has 
had carnal connexion with her erroneously, 
and a child is produced from it, in which 
case the child is the undoubted progeny of 
another), and hence, in his denial of its 
descent from him, the husband speaks truly, 
without any accusation of adultery against 
the wife being implied* 

REPL\-. This possibility is of no weight, 
because a stranger, if he were to deny the 
descent of child from the known and re- 
puted father, is held to be a slanderer not- 
withstanding this possibility ; and so in this 
case only, It is also a condition of impre- 
cation that the wife require her husband to 
produce the ground of his accusation, as this 
is her right, the demand of which is neces- 
sary ; as well as that of all other matters of 
right : and if he decline it, the magistrate 
must imprison him until he either make an 
imprecation, or acknowledge the falsity of 
his change, by saving, "I falsely attributed 
adultery to her," as this is a right due 
from him to his wife, and which it is in his 
power to render her, wherefore he is to be 
imprisoned till stch time as he does what is 
incumbent, or acknowledges his falsity, so 
as that the occasion for the imprecation may 
be removed (that is, the condition of impre- 
cation, namely, the mutual change of false- 
hood), because imprecation is not incumbent 
except where each changes the plea of the 



Arab. Mahsana. For a full definition 
of this term, see SLANDBK. 



124 



DIVORCE, 



VOL I. 



other with falsehood, after the husband 
having produced against his wife an accu- 
sation of adultery. And the husband having 
made an imprecation, the same is then in- 
cumbent upon the wife, it being so ordained 
in the Koran (but imprecation commences 
with the husband, as he in this case appears 
as the plaintiff) ; and if she decline miking 
imprecation, the magistrate is to imprison 
her till such time as the either agrees to 
make it, or to acknowledge her husband's 
veracity, this being his right incumbent upon 
her, and which she is able to render, where- 
fore she is to be imprisoned until she ren- 
ders it. 

Not incumbent, upon slaves or infidels IP 
a slave, or an infidel, or one who has suffered 
punishment as a slanderer, accuse his wife 
of whoredom, punishment for slander is due 
upon him, because here imprecation is impos- 
sible,* and consequently its original is due, 
and this punishment for slander, that 
being, the original ordinance in this case, 
according to the wprd o f GOD, "!F MEN 

ACCUSE MARRIED WOMEN OF WHOREDOM, AND 
PRODUCK NOT POUR WITNESSES, SCOURGE 
THEM WITH EIGHTY STRIPES ,'" no impre- 

cation is the substitute of punishment for 
slander ; and where the substitute cannot be 
had, the original is due. 

Nor, where the wife is a slave, an infidel 
or a convicted slanderer. IF the accuser be 
a person competent in evidence, and his wife 
be a slave, or an infidel, or a Kitabeea. or 
one who has suffered punishment as a slan- 
derer, or of the description of those whose 
accusers are not liable to punishment, as 
being an infant, or idiot, or adultress, 
punishment is not due, nor is imprecation 
incumbent upon him, as in this instance 
neither competency in evidence nor marriage 
(in the sense which induces punishmerfc) are 
attached to the accused. 

OBJECTION.- It would appear that in this 
case punishment for slander is due upon the 
husband, as imprecation is a substitute for 
that, and where the substitute cannot be 
had. it follows that the original is due. 

REPLY. Punishment is not due upon the 
husband, as he is capable of imprecation, 
thepbstacle to which exists in this case on 
the part of the wife, and this circumstance 
precludes punishment, in the same manner 
as where she acknowledges the truth of the 
iccusation. The foundation of ths is a say- 
ing of the Prophet, namely. "There are four 
descriptions of women with respect to whom 
imprecation is not incumbent, Jews and 
Christians married to MUSSULMANS, and 
ilaves married to freeman, and free women 
Tiarried to slaves." 

Nor tftfier* bath parties are convicted s/an- 
lerers,* IP the accuser and his wife be per- 
ions who have both already suffered punish- 



*As infidels and slaves, not being compe- 
:ent to give evidence, are incapahie of 
precftion. 



ment for slander, punishment is due upon 
the former, because in this case a reason is 
found against imprecation the part of the 
accuser, he being incapable of making it. 

Form o/ imprecation and the manner of 
making it THE manner of imprecation is 
as follows : The Kazee first applies to the 
husband, who is to give evidence four several 
times, by saying, "I call \GoD to witness to 
the truth of my testimony concerning the 
adultery with which I charge this woman ;" 
and again, a fifth time, "may the curse of 
GOD fall upon me if I have spoken falsely 
concerning the adultery with which I charge 
this woman," after which the Kazee re- 
quires the woman to give evidence, four 
separate times, by saying, "I call GOD to 
witness that my husband's words are al- 
together false, respecting the adultery with 
which he charges me/' and again, a fifth 
time, "may the wrath of GOD light upon 
me if my husband is just, in bringing a 
charge of adultery against me," Hasan 
records it as an opinion of Haneefa that ^the 
husband should, in making the imprecation, 
address himself in the second person, saying 
"by GOD I speak truly concerning the 
adultery with which I charge you," because 
the use of the second person does not admit 
the possibility of the address affecting any 
other. The reason for the form, as above 
stated, is that the relative, when joined to 
the third person, removes doubt. 

When both parties have made imprecation 
a separation takes place. AND on both 
making imprecation in this manner, a sepa- 
ration takes place between them ; but not 
until the Kazee pronounces a decree to that 
effect. Ziffer says that separation takes 
olace upon the imprecation, independent of 
any judicial decree, because a perpetual pro- 
hibition is established by it, the Prophet 
having said,, "the two who make impreca- 
tion an never come together," which 
proves {heir separation, as the Prophet's 
forbidding their ever coming together after 
imprecation expressly declares this. The 
argument of our doctors is that as, in conse- 
quence of the establishment of a prohibition 
between them, the retaining of the woman 
with humanity* is impossible, it is incum- 
bent upon the husband to divorce her on a 
principle of benevolence ; but if he decline 
so doing, it then behoves the Kazee to issue 
a decree of divorce, as the Kazee is the sub- 
stitute of the husband in this matter for the 
purpose of removing injustice : and a proof 
of this is that Aweemar divorced his wife 
after imprecation, in the presence of the 
Prophet, which shows that the marriage still 
continued, and was not virtually dissolved 
by the imprecation, otherwise the Prophet 
would Have prevented him from pronouncing 
divorce. Observe that the separation here 



? Alluding to, the words of Koran, "RE- 
TAIN THEM WITH HUMANITY/ OH 

THEM WITH KINDNESS. (See Rijat.) 



BOOK IV. CHAP. X.] 



DIVORCE. 



125 



mentioned is an irreversible divorre, accord- 
ing to Haneefa and Mohammed, because the 
act of the Kazee must be referred to the hus- 
band, as in cases of impotence. 

The husband, on receding from his impre- 
cation, may again marry his wife. IF, after 
imprecation, the husband should acknow- 
ledge that his accusation was false, by say- 
ing, "I falsely laid adultery to her charge," 
he becomes privileged with respect to her, 
that is to say, it is lawful for him to marry 
her as well as any other person.* This i s 
according to .Haneefa and Mohammed. 
A boo Yousaf says that she it for ever pr^> 
hibited to him, and that he cannot marry 
her, the Prophet having said, "two who 
make imprecation can never come together/' 
which shows the separation established be- 
tween them to be perpetual: wherefor his 
marriage with her is illegal. The argument 
of Haneefa and Mohammed is that the hus- 
band's acknowledgment is a retraction from 
his evidence (that is, from has imprecation), 
and evidence is by subsequent retraction 
rendered null and of no effect : and as to the 
saying of the Prophet above cited, it means 
that the parties cannot come together as 
long as they both persevere in their impreca- 
tion ; but after the husband's acknowledg- 
ment, the imprecation no longer remains 
either in substance or in effect, and conse- 
quently they may then come together. 

Imprecation occasions a decree of bas- 
tardy. Iv a husband accuse his wife by 
denying her child, it is requisite that the 
Kazee issue a decree denying the descent of 
the child from him and affixing it upon the 
mother ;f .and the manner of the impreca- 
tion here is that the Kazee first makes the 
husband give evidence saying, "I testify in 
the sight of God that I speak truly concern- 
ing the matter I have brought against her 
in denying the child " after which h* makes 
the wife give evidence in the same manner 
saying, I call God to witness that he speaks 
falsely concerning the matter he has brought 
against me, in denying the child." 
IF a husband accuse his wife both by bring- 
ing a charge of adultery ao^inst her, and also 
by denying a child born of her, it is necessary 
that both these circumstances be mentioned 
in the imprecation, after which the Kazet is 
to issue a decree, denying the descent of the 
child from the husband, and fixing it upon 
the mother, because the Prophet, once so 
decreed upon such an occasion, and also, be- 
cause the design of the imprecation in this 
casg is to bastardize the child, wherefore a 
decree must be passed agreeably to the 
design of it. 

A DECREE of separation between the parties 
comprehends a decree of bastardy in respect 

AiJ ? hl v *r *J rec rded an opinion of 
Aboo Yoosaf that m a decree of separa- 
tion, a decree of bastardy is not cornpre- 



"That is, without her being previously 
married to anotfeer. 

tThat is, bastardizing it. 



handed, but that it is requisite that the 
magistrate first effect the separation, and 
then say, "I throw the child upon the mother, 
and remove it from the father's house ;" 
because separation may sometimes take place 
without affecting the descent of children, as 
where a man accuses of adultery a wife who 
has children,* in which case a separation is 
established by imprecation, but bastardy is 
not induced upon the children ; the Kazee's 
mention of bastardy is therefore requisite. 

A husband receding from imprecation must 
be punished for slander. Ira husband, after 
imprecation, contradict himself, by acknow- 
!ec j ging that he had accused his wife falsely 
let the magistrate punish him, because he 
then acknowledges himself liab'e to punish- 
ment ; and it is afterwards lawful for the 
husband to marry her again (according to 
Haneefa and Mohammed), because having 
once suffered punishment for slander, com- 
petency to make imprecation no longer ap- 
pertains to him ; and the prohibition which 
is the effect of the imprecation is removed. 
In the same manner, if the husband and wife 
make imprecation, and the husband after- 
wards accuse of adultery a strange woman, 
who is married, and suffer punishment on 
that account, it then becomes lawful for him 
to marry his wife again for the reason afore- 
said And so also, if the wife, after divorce 
in consequence of imprecation, be found in 
adultery, and suffer correction from the Kazee 
on that account, it then becomes lawful for 
the husband to marry her again, as a com- 
petency to make imprecation no longer 
appertains to her. 

Imprecation not incumbent where the hus- 
band or wife is an infant, or an idiot. IF a 
man accuse his wife, she being an infant or 
an idiot, imprecation is not incumbent upon 
th parties, because the accuser of such a 
person is not liable to punishment for slander 
unless he be a stranger \ imprecation, there- 
fore, is not incumbent in the accusation of 
such wives by their husbands, as it is the 
substitute of punishment for slander. And 
the rule is the same where the husband is 
insane, or an idiot, because such an one is 
not competent in evidence. 

Or where the husband is dumb. IF a dumb 
person accuse his wife, imprecation is not 
incumbent, because imprecation is not in- ' 
cumbent unless the accusation be expressed 
in terms, as is the case in slander, where 
punishment is not incurred unless the ac- 
cusation has been expressly made.-^-Shafei 
opposes this ; for he holds that punishment 
is due upon the accusation of a dumb person, 
and consequently, that imprecation is in- 
cumbent, because his signs are the same as 
the words of one who has the power of speech ; 
but the argument of our doctors is that the 
signs of a dumb person are not altogether 
free from doubt, and punishment is removed 
by any circumstance of doubt . 



Meaning, children already born, before 
the period of the husband's accusation. 



126 



DIVORCE. 



[Votl. 



Or where the accusation is indirectly in 
sinuated. IF a man say to his wife, "you 
pregnancy is not of me/' imprecation is no 
incumbent. This is the opinion of Haneef< 
and Ziffer : and the reason upon which they 
found it is, that the circumstance of preor 
nancy does not admit of being positively 
ceri tried, wherefore the husband's words do 
not convey an immediate accusation. The 
two disciples say that imprecation is incum- 
bent in this case, provided the woman be 
delivered of a child within six months; anc 
it is this which is meant by what is said in 
the Mabsoot that "the existence of preg- 
nancy at the time of accusation may be 
certified ;" but to this we reply that where 
the accusation cannot be immediately es- 
tablished, it must remain suspended upon a 
condition, in the same manner as if the hus- 
band were to say to his wife, "if you produce 
a child it is not mine ;" and the suspension 
of accusation upon a condition is nugatory. 
BUT if he were to say to her, "you are an 
adulteress, and your pregnancy proceed from 
adultery," imprecation is incumbent upon 
both parties, as accusation is here established 
in the mention of adultery. Yet the Kazee 
is not in this case to issue any decree affect- 
ing the descent of the foetus. Shafei says 
that a decree of bastardy must be pro- 
nounced, because the Prophet decreed a 
bastardy in the instance of Hillall, who had 
accused his pregnant wife. The argument 
of our doctors is that the effect of a decree 
of bastardy cannot take place until after de- 
livery, since before delivery there is a pos- 
sibility of doubt respecting the pregnancy ; 
the Kazee, therefore, is not to decree a bas- 
tardy. As to the decree of the Prophet quoted 
by Shafei, it is possible that the Prophet may 
have been certified of the woman's preg- 
nancy by inspiration. 

Imprecation made posterior to the birth of 
a child doe* not affect that child's descent 
IF a husband deny the descent of the child 
upon the near approach of birth, or at the 
time when it is usual to receive congratula- 
tions, and to purchase clothes and make 
preparation for it, his denial holds good, 
and imprecation is^ incumbent upon him on 
account of it : but if he do not deny it until 
afterwards although imprecation be here 
also incumbent, yet the descent of the child 
remains established in him. This is the 
doctrine of Han ee fa. The two disciples say 
that the dental is admitted during labour, as 
it is admitted within a little time, but not 
within a long time, and hence a distinction 
is made between the shorter 1 period and the 
longer, by the time of labour, as the pains of 
labour are among the effects of breeding. 
The argument of Haneefa is, that it is im- 
possible to fix any time, because time is fixed 
for the purpose of consideration, aad man- 
kind vary in the length of time necessary 
for that purpose ; wherefore regard is had to 
a thing which shows the child to be his, 
namely, his receiving the usual congratula- 
tions, or remaining silent at the time of such 



congratulations, or purchasing things to pre- 
pare for the birth, or Jetting that time pass 
without denying it This is where he is 
present ; but if he be absent, and ignorant 
of the birth of the child, and afterwards 
come, the time aforesaid is regarded, accord- 
ing to both authorities ; that is to say, with 
Haneefa, it remains to him to deny the child 
within such space of time as congratulations 
are admitted and with the two disciples, 
within the space of time which corresponds 
with a woman's labour. 

IF two children be produced at one birth, 
and the husband deny the descent of the 
first-born, and admit that of the second, in 
this case the parentage of both is established 
in him, because they are both supposed to 
be begotten from one seed ; and punishment 
is due upon the husband, because he has 
contradicted himself in acknowledging the 
second child ; and if he admit the first, and 
denv the second, the parentage of both is 
established in him for the same reason ; and 
imprecation is here incumbent because his 
denial of the second child implies an accu- 
sation from which he does not afterwards 
retract (as in the former instance), since his 
virtual declaration of his wife's chastity, in 
acknowledging the parentage of one of the 
children, here precedes the accusation, being 
the same as if he were first to say, "she is 
chaste," and then to say, "she is an adul- 
teress" in which case imprecation would be 
incumbent, and so here likewise. 



CHAPTER XL 

OF IMPOTENCE 



*4n impotent husband must be allowed a 
vear't probation after which separation 
takes vlace IF a husband be Irneen [im- 
potent"), it is requisite that the Kazee appoint 
the term nf one year from the period of liti- 
gation, within which if the accused have 
carnal connexion with his wife it is well ; 
but if not, the Kazee must pronounce a sepa- 
ration, provided such be the desire of the 
wife, because the same is recorded from Alee, 
and Omar, and Ebu Musood, and also, be- 
cause the woman is entitled to the carnal 
njovment, and it is possible that the hus- 
:>and may be incapacitated from the per- 
formance of that act, not only by a radical 
nfirmity, but also by some supervenient and 
accidental cause, whence it is necessary that 
some certain term be appointed, in order that 
he true reaspn of his inability may be ascer- 
ained ; and this term is fixed at one year 
>ecause that contains four seasons, and dis- 
ases are principally occasioned by an excess 
ither of heat, cold, dryness, or humidity, 
jualities which are peculiar to each season 
espectively ; and it is probable that one of 
lesefour may particularly agree with the 



BOOK IV.-CHAP. XI] 



DIVORCE. 



117 



man's condition, fso as by its influence to 
dissipate his disease ; thus it may be ascer- 
tained, when a year has completely elapsed, 
whether his inability proceeded from any 
radical infirmity, in which case, it is impos- 
sible to retain the wife with humanity,* and 
hence it is incumbent upon the husband to 
separate from her, upon a principal of bene- 
volence : but if he should not do so, the 
Kazee is in that case to pronounce a separa- 
tion, as his substitute ; yet it is requisite 
that the woman desire such separation, as is 
her right. -The separation here mentioned 
amounts to the execution of a single divorce 
irreversible, because the act of the Kazee is 
attributed to the husband, whence it is the 
same as if he had himself pronounced such 
a sentence upon her. Shafei alleges that 
this Reparation is an annulment of the mar- 
riage : but with our doctors marriage is held 
to be incapable of being annulled of itself, 
although it may be annulled by effect, in the 
same manner as in the case of a husband's 
apostacy. And this separation amounts to 
an irreversible divorce, not a reversible, be- 
cause the intent of it is the woman's relief 
from a hardship, which cannot be effected but 
by complete divorce : for if it were not so, 
it would still remain in the husband's power 
to reverse it, which would defeat the de- 
sign. 

And the wife retains her whole dower, if 
the husband should ever have been in retire- 
ment with her. The wife, in the case here 
mentioned, is entitled to her whole dower, if 
the husband should ever have in retire- 
ment with her, because retirement with an 
Inneen is accounted a Khalwat Saheeh, or 
complete retirement, as well as with any other 
person ; and an Edit is incumbent upon her, 
as was mentioned in a former place. What 
is here advanced proceeds upon a supposition 
of the husband acknowledging that he has 
not performed the carnal act with Kis wife. 

But the wife 9 s claim of separation maybe 
here defeated by the husband swearing that 
he had enjoyed her. BUT if he controvert 
her plea, asserting that he has copulated 
with her, and she have been married as a 
Siyeeba, his affirmation upon oath is to be 
credited, because he is the defendant against 
her claim of separation, and the affirmation 
of a defendant must be credited when given 
upon oath : moreover, the instrument of 
generation is originally created free from 
inability or disease, and it is natural that he 
should perform the carnal act where no 
obstruction exists : and the declaration of a 
person is to be credited when apparent cir- 
cumstances bear testimony to his veracity, 
and where he rests his cause upon the nature 
of things. If, therefore, the husband thus 
&* oa jH, the wife's right of separation is 
thereby defeated ; but if he decline this, the 
term of a year is then to be appointed as 



Alluding to the words of the Koran be- 
fore mentioned. 



aforesaid. Where she was married as a 
virgin, she is to be examined by some of her 
own sex, and if they declare her to be still a 
virgin, the term of a year, is to be appointed, 
as above, because the husband's falsehood is 
then evident : but if they declare her muli- 
ebrity,* the Kazee is in that case to require 
the husband to make oath, which if he do, 
her right to separation is defeated ; but if 
he decline, decision is to be delayed for a 
year as above, -All that has here been said 
supposes the husband to be merely Inneen, or 
impotent: but if he be a Maj boob, or com- 
plete eunuch (that is, one deprived both of 
yard and testicles, or of the former only), 
the Kazee is to pronounce an immediate 
separation (where such is the woman's 
desire), because in this case the delay of a 
year can be attended with no advantage : 
if, however, he be only a Khasee, or simple 
eunuch (that is, castrated), decision is to be 
deferred for a year, as in a case of impotency, 
because there the yard still remains with 
which it is possible that he may perform the 
act. 

Rules to be observed at the expiration of the 
year of probation. WHERE the term of a year 
is appointed for the trial of a man charged 
with impotence by a wife whom he had 
married as a virgin, and he declares, at the 
expiration thereof, that he has had carnal 
connexion with her within that interval, and 
she denies this, she is then to be examined 
by some of her own sex ; if they pronounce 
her to be still a virgin, she has it at her 
option either to separate from her husband, 
or to continue with him, because the testi- 
mony of the examiners is confirmed by her 
virginity, that being the original state of 
every woman ; but should they declare her 
muliebrity, the husband is then to be re- 
quired on the other hand to make oath 
which if he decline, she has an option, as, 
above, her plea being strengthened by the 
circumstance of his declining to swear ; but 
if he swear, she has no option. If, moreover, 
she was a Siyeeba originally (that is at the 
time of marriage), and the husband declare 
that he has had carnal connextion with her 
within the year of probation, and she deny 
this, his declaration upon oath is to be cre- 
dited. that is to say, the oath is to be ten- 
dered to him, which if he take, she has no 
option ; but if he decline it, she has then an 
option as already stated. And here, if she 
choose to continue with him, she has no sub- 
sequent option, as by so doing she manifests 
an assent to the relinquishment of her 
right. t 

The year of probation to be calculated by 
the lunar calendar. TH year of probation 
appointed by the Kazee in cases of impotence 
is to be counted by the lunar calendar ; this 
is approved ; and the days of the courses, 
and of religious fasts (such as Ramzan), are 



Meaning womanhood, as opposed to vir- 
ginity. 



128 



DIVORCE. 



[VOL. I. 



therein included, -as these occur in all year 
alike, nor can a year pass without them ; but 
the days of sickness of either party are not 
included, as a year may pass exempt from 
such an occurrence. 

A husband cannot annul the marriage, 
where the defect is on the part of the wife 
IF the defect be on the part of the woman, 
the husband has no Bright to annul the mar- 
riage* - Shafei maintains that he may annul 
it, and put her away, on account of any of 
the five following defects namely, leprosy, 
scrophula, madness, Ritk.f or Karrn.t be- 
cause some of these (such as the two latter) 
are obstructive of generation ; and others 
(such as the three former) are causes of 
natural and insuperable aversion, as is con- 
firmed by a tradition of the Prophet, who has 
said, "flee from LEPERS as ye would from a 
WILD BEAST." The argument of pur doctors 
is that if the enjoyment of the wife's person 
were to be totally precluded by any circum- 
stance (such as death, for instance, before 
retirement), yet the marriage is not annulled, 
but is rather established and confimed, inso- 
much that the whole dower remains due ; and 
hence, where such privation of the connubial 
enjoyment is merely dubious, on account of 
its being occasioned only by a defect in the 
subject, it remains unannulled, a fortiori - 
upon this ground, that the design of matri- 
mony is to legalize generation, and the 
connubial enjoyment is the advantage pro- 
posed in it ; and the ability to perform the 
act, where any natural obstruction exists, 
may be obtained, as in a case of Ritk or 
Karrn (for instance) which are to be remedied 
by chirurgtcal operations ; and in all other 
cases the ability is evident. 

A wife cannot sue for a separation on 
the ground of her husband being leprous, 
scrophulous, or insane. IP the husband be 
lunatic, leprous, or scrophulous, yet his wife 
has no option, as in cases where he is an 
eunuch, or impotent. This is according to 
Haneefa and Abou Yoosaf. Mohammad says 
that she is entitled to an ootion, in order that 
she may remove an evil from herself ; con- 
trary to the case of a husband, he having it 
in his power, in similar circumstances, to 
relieve himself by divorce. The argument 
of the two Elders is that in marriage no 
right of option originally exists, for if this 
were allowed, it would operate to the destruc- 
tion of the husband's right ; and it is an - 
mitted in the case of eunuchs, or of persons 
naturally impotent, only because the circum- 
stance of natural or accidental infirmity tends 
to defeat the tnd for which marriage was in- 
stituted ; but with persons of the descriptions 
now under consideration this reason does not 

That is, to break it off so as to destro) 
the woman's claim to her dower, which coulc 
not be done by divorce. 

t Vulva impervia coeunti. 
| A bone, or other unnatural excrescence, 
yulva anteriore parte enascn*. 



hold, as the husband who laboures under any 
of those defects is still capable of generation, 
whence an evident difference appears between 
the two cases. 



CHAPTER XII. 

OF THE EDIT. 

Definition of the term. BY Edit is 
stood the term of probation incumbent t . 
a woman in consequence of the dissolu , 
of marriage after carnal connexion : 
most approved definition of Edit is, the te rm 
by the completion of which a new marriage 
is rendered lawful. 

The Edit of a divorce of a free woman it 
three menstruations. WHEN a man repu- 
diates his wife, being a free woman, either 
by a reversible or an irreversible divorce, or 
when separation takes place between a hus- 
band and wife, without divorce, after carnal 
connexion, the Edit, or woman's term of 
probation, consists of three terms of her 
courses, provided she be one who is subject 
to the menstrual discharge, GOD having so 
commanded in the Koran. The separation 
which takes place between a married couple, 
independent of divorce, bears the same 
construction as divorce, because the Edit is 
made incumbent in a case of divorce for the 
purpose of ascertaining whether the woman 
be pregnant, and the same necessity occurs 
where separation takes place between a hus- 
band and an enjoyed wife without divorce. 
The separation without divorce may be occa- 
sioned either by a woman admitting the son 
of her husband to carnal connexion, or by 
her apostatizing from the faith. 

And of one not subject to courses, three 
months : and of one who is pregnant, the 
term of tier travail. THE Edit of a woman 
who, on account of extreme youth or age, 
is not subject to the menstrual discharge, 
is three months, because GOD has so ordained 
in the sacred writing, The Edit of a preg- 
nant woman is accomplished by her delivery, 
whether she be a slave or free, because GOD, 
in the sacred writings, has so ordained re- 
specting woman in that situation. 

That of a slave is two menstruation THE 
Edit of a female slave is two terms of her 
courses, because it is thus mentioned in the 
traditions, and also, because bondage is re- 
strictive to the half, whence it would appear 
that the Edit of a slave should be only one 
term and a half of her courses, but the men- 
strual discharge b^ing ift capable of subdie vi- 
sion, the half is, of necessity, made a whole 
term, and hence the Edit of such an one is two 
terms ; and it is to this that Omar advert, 
where he says, "I would if possble fix the 
Edit of a female slave at one and an half of 
her courses." 

And of one not subject to courses a month 
and an half. WHERE the farnale slave is 
one who from extreme youth or age is not 



BOOK IV. CHAP. XII.] 



DIVORCE. 



129 



subject to the menstrual discharge, her Edit 
is one month and an half, because time being 
capable of subdivision, the terai is fixed at 
the half on account of her bondage. 

Edit of widowhood THE Edit of a free 
woman upon the decease of her husband is 
four months and ten days. Such being the 
term mentioned in the Koran: and that of 
a female slave in the like circumstance is two 
months and five days, bondage being restric- 
tive to the half. 

Case of Edit of widowhood after divorce. 
!F a man divorce his wife upon his deathbed, 
so as that she still inherits of him,* Haneefa 
and Mohammad say that her Edit, in conse- 
quence of his decease, is four months and 
ten Hays, if she complete three terms of her 
courses within that period; but if the three 
terms be not accomplished, as requiring a 
longer time (five months for instance), her Edit 
is in that case three terms of her courses, what- 
ever time those may require. In short, here 
are two terms ; one, that of four months and 
ten days ; and the other, that of three mem- 
struation ; and whichever of these is the 
longest, the same is the term of Edit. Aboo 
Yoosaf says that the Edit of this woman 
is three menstruations. This difference of 
doctrine obtains where the sick person has 
repudiated his wife by one divorce irre- 
versible, or by three divorces: but where 
the divorce is reversible, the Edit is four 
months and ten days, according to all the 
doctors. The argument of Aboo Yoosaf, in 
support of this doctrine, as above, is that the 
marriage had been dissolved and terminated 
by the divorce, previous to the decease of the 
husband, and the Edit of divorce is three 
terms of the courses, whence such is the Edit 
incumbent in the present case, as that of four 
months and ten days (being the Edit of 
widowhood), is required only where the mar- 
riage was dissolved by the husband's decease ; 
but in the present case it was dissolved 
before his death, by divorce. To this indeed 
it may be objected that, if the ntarfiage be 
dissolved before the husband's decease, it 
would follow that the wife cannot inherit : 
but the marriage is accounted to hold, in 
respect to inheritance only, and not so as to 
alter or affect the Edit : contrary to where 
a dying husband repudiates his wife by a 
reversible divorce ; her Edit in that case 
being universally held to be strictly an Edit 
of widowhood, since the marriage then 
actually continues in every shape, The 
argument of Haneefa and Mohammed is that 
the marriage being here accounted to con- 
tinue with respect to inheritance, is also 
accounted to continue with respect to Edit ; 
and hence the longest of the two is regarded. 
If a man be put to death for apostasy, so as 
that his wife inherits of him, the same diffe- 
rence of opinion obtains respecting her Edit 
as is above recited. Some commentators 
allege that her Edit is held to be three terms 
of her courses by all the doctors, as her 



marriage is not accounted to continue to the 
time of her husband's decease with respect 
to inheritance, since a Mussulman woman 
cannot inherit of an infidel ; but yet the 
wife does here inherit, because her claim to 
inheritance is established upon the instant of 
her husband's apostasy j her Edit, therefore, 
is three terms ot her course. 

A female slave, emancipated during Edit, 
must observe the Edit of a free woman. IF 
a master emancipate his female slave, whilst 
in her Edit fro.n a reversible divorce, she 
is in that case under Edit as a free woman, 
and must count it accordingly : because, in 
reversible divorce, so long as the Edit is 
unaccomplished, marriage continues in every 
shape : but if a master emancipate his 
female slave, whilst in her Edit from a di- 
vorce irreversible, or from the deceased of her 
husband, her Edit is not affected or altered 
by such emancipation: that is, it does not 
become the Edit of a free woman, because 
her marriage has been completely dissolved 
by the irreversible divorce, or by the hus- 
band's death. 

Rule of Edit of a woman past bearing. 
IF an Ayeesa* be in her Edit, counting it by 
months, and the menstrual discharge should 
chance to appear upon her, in this case all 
regard to that portion of the Edit which has 
been counted by months drops, and her Edit 
commences de novo, to be counted by the 
terms of her courses. The compiler of this 
work observes that this is where the Ayeesa 
had been subject to the courses before she 
became hopeless of children, as in this case 
her despair is done away ; and this - is ap- 
proved, because it is evident that months, 
with respect to such a woman, are not 
the absolute substitutes of Edit : but if an 
Ayeesa be one to whom the menstrual dis- 
charge had never occurred before, and be in 
her Edit, counting it by months, and' see 
the appearance of the sanguinary discharge, 
regard to the term of the Edit which has 
been counted by months does not drop, be- 
cause the counting by months is the original 
rule with respect to such a woman, and not 
merely the substitute for her courses. 

IF a woman be in her Edit counting it 
by the term of her courses and after two of 
those they should stop, and she become an 
Ayeesa, her Edit commences de noVo, to be' 
counted by months, and all regard to- the 
courses drops, so as that the substitute 
(which is months) and the original (which is 
the courses) may not be confounded. 

Rule of Edit in an invalid marriage. * 
THE Edit of a woman wedded by an invalid 
marriage is counted by her courses, both in 
case of her husband's death, and also of a 
separation taking place between them; and 
so likewise that of a woman with whom a 
man has had carnal connexion erroneously ; 
because in those cases, the Edit is incumbent 



*See Chap. IX 



* laterally, a despairer, that is, woman 
whose courses are stopped, and who is con- 
sequently supposed to be past child-bearing. 



130 



DIVORCE. 



[VOL. I. 



merely for the purpose of ascertaining whe- 
ther the woman be pregnant, and not as a 
right of marriage ; and as the courses are 
the means' of ascertaining the state of the 
womb, the Edit of those women is to be 
counted by their returns. 

Edit of an Am-WaHd. IF the master of 
an Am-Walid should die, or emancipate her, 
her Edit is three terms of her courses. 
Shafei says that her Edit is only one term, 
as it is incumbent upon her on account only 
of the extinction of the owner's propriety, 
and consequently no more is requisite to 
effect it than what may suffice to cleanse her 
womb. The argument of our doctors is, 
that Edit is incumbent upon her on account 
of the extinction of Firash* (for she is the 
partner of her master's bed), and is, therefore, 
the same as that used in the dissolution of 
marriage: moreover, Omar has said, "the 
EDIT of an AM-WALID is three terms of her 
courses." If the Am-Walid 'be not subject 
to the menstrual discharge, her Edit is three 
months, the same as that of a married 
woman. 

Edit of the widow of an infant. IF an 
infant die; leaving a wife pregnant, her Edit 
is accomplished by her delivery, according 
to Haneefa and Mohammad. Aboo Yoosaf 
says that it is four months and ten days 
(and such also is the opinion of Shafei), be- 
cause the pregnancy cannot be attributed to 
the infant, and is, therefore, with respect to 
him, the same as if it had taken place pos- 
terior to his decease. The arguments of 
Haneefa and Mohammed herein are twofold ; 
FIRST, the word of GOD, who has said in the 
Koran, *'A WOMAN, IF HE BE PREGNANT, 

MUST WAIT UNTIL HER DELIVERY/' which IS 

generally expressed, and therefore applies to 
the woman here treated of : SECONDLY, the 
Edit of a woman whose husband dies is (in- 
case of her 'pregnancy) fixed at the remain- 
ing term of her travail, whether that be short 
or long : now the Edit of a widow is not 
designed for the purpose of ascertaining the 
state of her womb ; for if it were so, if would 
not be determined by the lapse of time 
(supposing her to be one who is subject 
to the menstrual discharge), but by three 
terms of her courses : whereas we see that 
the law fixes it at four months and ten days, 
although she be a woman of that description ; 
but it is made incumbent merely as a fulfil- 
ment of one of the rights of marriage; and 
the same reasoning applies to the wife of the 
infant in question, although her pregnancy 
be not attributed to him : contrary to where 
pregnancy takes place, subsequent to the 
infant's decease ; for here her 4 * Edit of four 
months and ten days having commenced, 



* Firash literally means a bed, whence it 
is metaphorically used to express a right of 
cohabitation or concubinage : it is so used 
in the setise of a wife or a concubine, whence 
it is here and elsewhere translated partner of 
his bed. 



is not afterwards to be altered by her sub- 
sequent pregnancy ; but in the case now 
under consideration, the Edit of the term of 
travail was due from instant that Edit 
become incumbent ; hence there is an evi- 
dent difference between the two cases ; and 
consequently there is no analogy between 
them. The pregnancy is determined to have 
taken place after the death of the husband, 
where the woman is not delivered within less 
than six months from the date of the hus- 
band's decease. This is the approved rule. 
Some have said that it is so judged only 
where she is delivered within not less than 
two years. But if a husband, being adult, 
should die, and his wife be delivered of a 
child at any time between six months and 
two years from the period of his decease, her 
Edit is accomlished by her delivery, be- 
cause the pregnancy is in this case attributed 
to the husband, and hence is accounted the 
same as if it had existed at the period of his 
decease. Observe that the parentage of a 
child born of the wife of an infant cannot be 
established in the infant,, whether her preg- 
nancy had appeared during his life, or not 
until after his decease, because an infant, 
not being possessed of seed, cannot be con- 
ceived capable of impregnating a woman ; 
and marriage is not held to be a substitute for 
seed,* excepting where the existence of seed 
on the part of the man may be supposed. 

Edit of divorce of a menxtruous woman, 
IF a man divorce his wife whilst in her 
courses, that term is not to be counted in her 
Edit, because the Edit is fixed at three com- 
plete menstruations, and if the above were to 
be counted, it would induce a deficiency, as 
part of that had passed previous to divorce, 
and therefore cannot be included. 

Edit of a divorced woman who has con- 
nexion with a man during the term of her 
Edit of divorce. lv a man have erroneous 
carnal conrtexion with a woman who is in 
her Edit from divorce, another Edit becomes 
incumb'nt upon her, and the two are blended 
together, that is to say, her ensuing courses 
are accounted in both Edits ; and if the 
former Edit should be accomplished before 
the latter, the accomplishment of that still 
remains incumbent upon her. This is the 
opinion of our doctors. Shafei mamams 
that two Edits cannot be blended together, 
because the Edit is an act of piety (as it 
restrains from taking another husband, and 
so forth) and two acts of piety are not per- 
mitted to be united in one account ; as m 
fasting for instance, where no part of the 
abstinence of one day can be put to the ac- 
count of another. The argument of our doc- 
tors is that the design of the Edit is to ascer- 
tain the state of the womb, and as that is 
answered by a single Edit, the two Edits may 
be counted together ; and piety is not the de- 
sign of the Edit, but rather a dependant on it; 



That is, cannot be held to amount to a 
virtual establishment of parentage. 



BOOK [V. CHAP. XII.] 



DIVORCE. 



131 



whence it is that the Edit miy be accom- 
plished, even without the knowledge of the 
woman, merely by her refraining from going 
abroad, or from marrying another husband, 
or from consummating her marriage with 
him during the term ot it. 

Edit of a wid>w who admits a man Jar - 
ing her Edit of widowhood. IF a man have 
carnal connexion with a woman who is in 
her Edit from the death of her husband, she 
is to complete that of four months and ten 
days, being the Edit of widowhood ; at the 
same time counting such terms of her courses 
as may occur within the remainder of that 
time, so as that the two Edits may be counted 
together as far as is possible, 

The Edit of a widow, or a divorced wife , 
may be accomplished without her knowledge. 
THE Edit of divorce commences imme 
diately upon divorce, and that of widowhood 
upon the decease of the husband ; if, there- 
fore, a woman be not informed of her widow- 
hood or divorce until such time as the term 
of Edit be passed, her Edit is then accom- 
plished, because the occasion of Edit being 
incumbent is widowhood or divorce, and it 
is therefore held to commence upon the 
occurrence of the occasion. Our modern 
doctors have decreed that the Edit of divorce 
should not bt held to commence until the 
divorce be publicly declared, in order to 
guard against collusion between the parties ; 
as it is possible that a husband and wife 
might privately agree to declare a divorce, 
and pretend that Edit had already past, so 
as that, by this meani, the marriage being 
dissolved, he might be enabled to acknow- 
ledge a debt in her favour, or make her a 
bequest of more than her proper inheritance. 

Edit from an invalid marriage. IN an 
invalid marriage the Edit commences imme- 
diately upon the Kazee's decree of separation, 
or upon the determination of the husband, 
expressly signified, to refrain from carnal 
connexion. Ziffcr says it commerfce from 
the date of the lait carnal connexion from 
parties because, in an invalid marriage, ft is 
t* carnal connexion which g.ves occasion 
for it, and not the marriage.- Tht argu- 
ments of our doctors are twofold ; FIRST, 
every instance of carnal connexion occurring 
man invalid marriage stands only as one 
single met, as they all proceed from, and origi- 
nate m ; one contract (whence it ts that one 
dower suffices for the wholt) : wherefore, 
until the actual stparation, or determination 
signified, as above, Edit cannot be estab- 
lished, for in every previous instance of 
carnal connexion it is possible that the same 
may be repeated; and hence, so long at the 
separation or determination do not exist, no 
particular instance of the carnal act can be 
positively termed the last : SICONDLY, the 
last instance of carnal connexion cannot be 
ascertained to be the laat, but by the hus- 
band i ; signified determination to refrain for 
the future, since permission on the part of 
the woman, and ability on thai of the man, 
in a matter of so concealed and doubtful a 



nature as carnal connexion, stand as a con- 
tinuance of it, and any other man wba may 
be desirous to marry the woman will require 
to know the effect of the Edit ; it La there- 
fore requisite that something known and 
visible be substituted for that which is con- 
cealed, so as that such visible circumstance 
miy afford a standard whereby to determine. 

A uuman's oath confirms the Accomplish* 
mint of her Edit. IF a woman under Edit 
should declare that it is accomplished, and 
her husband deny this, her declaration upon 
oath is to be credited, because she is confided 
in this point and he has thrown an impu- 
tation upon her veracity ; she is therefore to 
swear in the manner of a plaintiff. 

Case of a woman re-married after divorce 
and again repudiated. WHEN a man hiving, 
repudiated his wife by an irreversible divorce, 
marries her again during her Edit, and after- 
wards divorces her before consummation, a 
complete dower is in this case incumbent 
upon him, and upon the woman an Edit de 
novo, according to Haneefa and Abop Yoosaf, 
^-Mohammed says that no more is incum- 
bent upon the man than an half dower, nor 
upon the woman that the accomplishment of 
her first Edit, because the second divorce is a 
divorce before consummation, and, therefore 
does not require either that he should pay a 
complete dower, or that he should observe a 
new Edit ; nor does anything remain with 
respect to her, but that she complete the first 
Edit incumbent in consequence of the first 
divorce : for the obligation upon the woman . 
to complete her first Edit disappeared upon 
the husband marrying her again ; but this 
last marriage being done away by his divorc- / 
ing her a second time, her obligation to the 
completion of her first Edit recurs. The . 
argument of Haneefa and Aboo Yoosaf is 
that the second divorce is, in fact, given after 
carnal connexion, since the woman is still 
actually within the seisin of the man in 
consequence of such connexion formerly had 
with her, the effect of which remains, namely, 
the Edit ; and where he marries her again 
during her Edit, she being still within his, 
seisin, such possession is the substitute of 
that which appertains to him in virtue of the 
second marriage ; as in the case of an usurper, 
who if he make purchase of the article 
usurped whilst it is within his seisin, is held 
to be seised of the purchase on the instant of 
the execution of the contract of sale ; it is 
therefore evident that the second divorce is a 
divorce after carnal connexion. Ziffer says 
that no Edit whatever is incumbent upon 
the woman, because, the former Edit dropt 
in consequence of the second marriage and 
therefore cannot rocur ; and no Edit is due 
on account of the second divorce, as thttt is a 
divorce before consummation : but the argue* 
ments of the two Elders, as above recited, 
are a sufficient reply to this. 

Ir a Zimmee, or infidel subject, repudiate 
his wife who is also an infidel subject, no 
Edit is incumbent upon her : and the same 
rule applies to an alien woman who having 



132 



DIVORCE. 



[VoL. I. 



been converted to the faith, comes from the 
foreign into the Mussulman territory : * it is 
therefore lawful for such women to marry 
before the expiration of the term of Edit, 
unless they be pregnant. This is the opinion 
of Haneefa with respect to such infidel sub- 
jects as do not hold or believe in the obliga- 
tion of Edit. The two disciples say that Edit 
is incumbent upon women of either descrip- 
tion ; upon infidel subjects, because they 
have bound themselves to the observance of 
all such things as appertain to the temporal 
law ; and upon aliens who, having embraced 
the faith, come into the Mussulman territory, 
because it is so upon sueh women on other 
accounts, such as the death of their husbands, 
or the in admitting the son of the husband to 
carnal connexion, and is therefore equally 
obligatory on account of separation of coun- 
try ; contrary to the case where a man, being 
converted to the faith, comes from a foreign 
into a Mussulman territory, and his wife 
remains in the foreign country, for upon her 
no Edit is incumbent, as the obligation of it 
cannot reach or effect her in a foreign land. 
The argument of Haneefa with respect to 
infidel subjects is that they not being under 
any obligation in respect to the ordinances of 
the law, the obligation of the Edit, as a right 
of the law, cannot be conceived to affect 
them ; nor can it be supposed to do so on 
account of the right of the husband, as he 
does not hold or believe in the obligation of 
it , and his arguments with respect to alien 
woman are twofold ; FIRST, GOD has con- 
manded Mussulmans, saying, YE MAY 

MARRY FOREIGN WOMEN, WHO BEING CON- 
VERTED TO THE FAITH. COME INTO THE TER- 
RITORY OF THE BELIEVERS ;" SECONDLY 

wherever the Edit is incumbent, the right of 
man is connected with it ; but a Hirbee, or 
alien, is not considered as man, but as mere 
matter (whence it is that he is made a pro- 
perty or slave).~But where the woman is 
pregnant the Edit is incumbent, on account 
that the foetus of which she is pregnant is of 
established descent. It is recorded from 
Haneefa that it is lawful to marry such 
women, being pregnant, but that the hus- 
band must refrain from carnal connexion 
until after delivery, in like manner as in the 
case of women pregnant and by whoredom. 
The former, however, is the better opinion. 

Section. 

Of Hidad, or Mourning. 
Definition. BY Hidad is understood a 
woman abstaining from the use of perfumes, 
such as scented or other oils ; or of ornaments, 
such as dying the edge of the eyelids with 
antimony, and so forth, except on account of 
some particular pretext, or (as is said in the 
Jaina Sagheer on account of aches or pains 
wlych those application may remedy. 



This supposes a woman who, having been 
converted to the faith in a foreign land, 
deserts her infidel husband there, and comes 
into me Mussulman territory. 



Mourning is incumbent on the death of a 
husband HIDAD, or mourning, is incum- 
bent upon a woman whose husband dies, 
where she is of mature age and a Musslima, 
because the Prophet has said, "It is not law- 
ful for a woman who believes in GOD, and a 
future state, to observe HIDAD for more than 
three days on account of the death of any one 
except her HUSBAND ; but for him it is incum- 
bent upon her to observe HIDAD for the space 
of four months and ten days. 

Although he die during the wife's Edit 
from irreversible divorce OUR doctors say 
that it is equally incumbent upon a woman 
whose husband dies whilst she is tinder 
repudiation by irreversible divorce. Shafci 
asserts that it is not incumbent upon her, 
because the sole intention of its institution is 
to signify grief for the decease of a husband 
who has faithfully adhered to the marriage 
contract until death ; but there is no cause of 
grief for the demise of one; who had, during 
life, thrown his wife into aifficulty and per- 
plexity by divorce. The arguments of our 
doctors, in support of their opinion upon this 
point, are twofold, FIRST, the Prophet forbade 
women under Edit dyeing their hands with 
Hinna,* as it is a species of perfume ; 
SECONDLY, mourning is incumbent as a sign 
of grief tor the loss of the blessings of matri- 
mony, which is not only the means of her 
support, but also of the preservation of her 
chastity ; and an irreversible divorce is a more 
complete termination of those blessings than 
even death itself, since it is lawful for a 
woman to perform the last offices of ablution, 
and so forth, to the corpse of a deceased hus- 
band from whom she is not irreversibly 
divorced, whereas it is not lawful for her to 
perform those offices to the corpse of one 
from whom she is completely divorced ; 
wherefore in this case also a mourning is 
incumbent. It may here be observed that 
mourning is incumbent for two reasons : 
FIRST, as* it is a manifestation of grief (as 
was mentioned above. SECONDLY, because 
ornaYnenting or setting off the person by the 
use of the above articles is a means of ex- 
citing the desires of men, and to a woman 
under Edit marriage is forbidden, wherefore 
she must refrain from the use of such things, 
lest she fall into that which is prohibited. 
It is recorded, in the Naki Saheeh, that the 
Prophet would not permit women under Edit 
to use antimony upon their eyelids, or to 
apoint themselves, as the former is an orna- 
ment, and the latter is one way of using per- 
fume. By what is said in the definition of 
Hidad, in the beginning of this section, viz., 
"abstaining from perfumes, and so forth, 
except on account of some particular pre- 
text," is to be understood the use of 
those is lawful, where there is any sufficient 



A sort of herb, the juice of which dyes 
the palms of the hands and soles of the feet 
of a reddish colour. The herb Cyprus, or 
privet. 



BOOK IV. CHAP. XII.] 



DIVORCE. 



133 



reason for it, as they are then used of neces- 
sity ; but it is requisite that the intention [of 
the mourner] in the use of them be medicine, 
and not ornament. 

IF a woman be accustomed to the use of 
unctions, in such a manner that there might 
be an apprehension of her health suffering 
from the disuse, in this case, provided the 
cause for apprehension be in her conception 
apparent and evident, it is lawful to continue 
the use of them, because things of which 
occurrence is strongly apprehended by her 
are considered as actually existing and estab- 
lished, and in the same manner, she may 
wear warm furred or velvet garments, where 
there is a necessity : but it is in no way law- 
ful for her to use Hinna, because of the pre- 
ceot of the Prophet before recited : nor to 
wear cloth dyed with saffron, before that 
gives a perfume. 

Mounding not incumbent upon infidel 
women or infants (but it is incumbent upon 
slaves). MOURNING is not incumbent upon 
an infidel woman, as she is not bound to the 
observances required by the law ; neither is 
it incumbent upon infants or girls under age, 
for the same reason ; but it is incumbent 
upon female slaves, they being bound to the 
observances of the law in all such points as 
do not affect the right of their owner, which 
is the case with mourning ; it is to be ob- 
served, however, that the mourning, with 
respect to female slaves does not include a 
prohibition from going abroad, since this 
would be an infringement upon the pro- 
prietor's right, which precedes the right of 
GOD, as the individual is necessitous, whereas 
GOD, is not so. 

Nor upon Am-Walid, nor upon widows 
from invalid marriage. MOURNING is not 
incumbent upon an Am-Walid under Edit 
from the decease of her proprietor ; nor upon 
a woman under Edit who has been contracted 
in an invalid marriage, because, with re- 
spect to such women, the blessing!? of mar- 
riage cannot be said to perish so as to affbrd 
a reason for the manifestation of grief, ihore- 
over, ornaments and the use of perfumes, 
and so forth, are in their original nature 
allowable : and where no special reason 
appears for the prohibition of them, they 
necessarily continue to be so. 

Proposing for a woman during her Edit 
is disapproved. IT is not decent in any per- 
son publicly or expressly to solicit or seek 
connexion with a woman under Edit ; but 
it matters not if this be done in an indirect 
and ambiguous manner : yet they should not 
pass any secret promise of marriage to each 
other, this being forbidden in the Koran. 
The ambiguous mode of proposal above men- 
tioned is described by Ebn Abbas to be, that 
the man in the woman's presence may de- 
clare his wish to marry, in general terms 
without any particular application. 

Rules for the behaviour of women during 
Edit, IT is not not lawful for a woman under 
divorce to go abroad, either in the night or 
day, whether the divorce be reversible or 



irreversible, because the word of GOD in the 
Koran forbids them from appearing abroad : 
but a widow is at liberty to go forth during 
the whole day, and for a short eason of the 
night also ; yet she must not pass the night 
anywhere but in her own apartments. The 
reason of this indulgence is that as a widow 
has no provision from her husband's pro- 
perty, it may be necessary that she should go 
forth to seek for a subsistence, and it may 
sometimes happen that she is detained abroad 
a considerable time, perhaps till after night- 
fall, whence the extension of the liberty to a 
part of the night; but it is otherwise with 
a woman under divorce, as she is entitled 
[during Edit] to a subsistence from the hus- 
band. Yet if a woman were to enter into 
an engagement of Khoola with her husband, 
making the consideration for Khoola to con- 
sist of her subsistence during her Edit, some 
say that she is at liberty to go during the 
day, while others maintain that she has no 
liberty of going forth whatever, as the loss 
of alimony during Edit is a consequence of 
her own voluntary act, wherefore t he prohi - 
bition, which is right of the law, still con- 
tinues in force. 

IT is incumbent upon a woman under Edit 
that she observe and accomplish the same in 
the place where she was resident at the period 
of divorce taking place, or of the husband's 
decease, whether that be her own accustomed 
dwelling, or a house where she may be upon 
a visit (that of her parents, for instance), 
because this is so ordered in the Koran ; and 
it also appears in the traditionary precepts 
of the Prophet that he said to a woman 
whose husband was slain, ''stay in your own 
house until your EDIT be a accomplished. 

A widow may remove from her husband's 
house, if inconveniently situated there. Iv the 
apartment allotted to a widow, in the house 
of her deceased husband, be not sufficiently 
spacious for her accommodation, and it 
should happen that the heirs of the defunct 
exclude her from the other parts of the 
house, it is then lawful for her to remove 
elsewhere, because she has here an excuse, 
and any good pretext suffices in all matters 
appertaining to the spiritual law, of which 
description is Edit ; the case is therefore the 
same here as where the woman has reason to 
fear thieves in her own house, or where 
there is an apprehension of its falling, or 
where she holds it by hire, and is unable to 
pay the rent : all which circumstances are a 
sufficient case of removal as well as in the 
present case. 

A wife under irreversible divorce must b* 
accommodated with a separate apartment 
WHERE a husbaifd and wife are separated by 
irreversible or triplicate divorce, it is requi- 
site that there be a curtain or partition 
between them ; and there is no objection to 
their continuing to reside in the same house, 
provided this be attended to, as the husband 
has himself declared her to be prohibited to 
him : but if he be a dissolute person*, one 
who has no command of his passions, and of 



134 



DIVORCE. 



[VOL. I. 



whom it may be apprehended that he will 
commit with her that which is unlawful, it 
is in this case expedient that she remove to 
another house (since there it evidently a 
sufficient excuse), and that she continue there 
until the accomplishment of her Edit ; it is 
better, however, that the dissolute husband 
leave her in his house, and remove to 
another himself . It is laudable in the par- 
ties, whether the husband be dissolute or 
otherwise, to engage a female friend to re- 
side in the house with them, who may be 
able to prevent any improper connexion. 
Ifthedweling house be so small as not to 
admit of their residing in it under these pre- 
cautions, it i then necessary that the w.fe 
remove elsewhere ; but it is better that ihe 
husband remove, and leave her to reside in 
the house. All this proceeds upon a suppo- 
sition of the husband's having no more than 
one house. 

Rule respecting a wife divorced upon a 
journey. IF a woman accompany her 7 hui 
band upon a journey, or on a pilgrimage to 
Mecca, and he give her three divorces upon 
the way, or die, leaving her in an uninhabited 
place, she must return to her own city, pro- 
vided the distance be within three days' 
journey, because this is not to be considered 
as going abroad, but rather as a cosequence 
of her having before gone abroad ; but if the 
distance exceed three days' journey, she is 
then at liberty cither to return home, or to 
proceed upon the pilgrimage, whether her 
guardian be with her or not. The compiler 
of this work observes that this is only where 
she is left within three days' journey from 
Mecca, where her stay would be more dan- 
gerous than her proceeding ; but her return 
to her own city is preferable, in order 
that she may there accomplish her Edit in 
the house of her husband. But if, in the 
case under consideration, the divorce or 
death occur in a city, or other inhabited 
place, tht woman must not go forth from 
that place until her Edit be accomplished, 
after which she may leave it, provided she be 
accompanied by any male relation within the 
prohibited degrees. What is here advanced 
is the doctrine of Haneefa. The two dis- 
ciples say that, if the woman be accompanied 
by a relation within the prohibited degrees, 
she may leave the place before her Edit be 
past ; for they argue that she ought to be 
allowed to return home, in order that she 
may relieve herself from the disagreeable 
circumstance attending her residence in a 
strange place, and also from the derangement 
and trouble of a journey, because these are 
sufficient pretexts, and the impropriety of 
her travelling is removed ^>y the circum- 
stance of her relation accompanying her 
To this Haneefa replies that Edit affords a 
stronger reason against removal than even 
the want of a relation's protection, as a 
woman may lawfully go to any distance 
within a day's journey, without being accom- 
panied by a relation, whereas this is not 
lawful for a woman under Edit : and where 



it is unlawful for a wman to go to any 
greater distance, unaccompanied by a rela- 
tion, it is for one under Edit, a fortiori. 



CHAPTER XIII. 

OP THE ESTABLISHMENT OF PARENTAGE. 

A child born after six months from the 
date of a marriage upon which it suspended 
a conditional divorce, is the lawful offspring 
of such marriage. IF a man matte a declara- 
tion, saying, ''if I marry such a woman she 
is divorced/ 1 and he afterwards marry her, 
and she produce a child after six months 
from the day of the marriage,* the parentage 
of the child is established in him, and the 
dower is incumbent upon him ; the former is 
established, because the wife is in this case 
considered as a partner of his bed at the 
period of conception, as having brought forth 
a child at the expiration of six complete 
months from the date of the marriage, a 
time considerably posterior to the divorce, 
since that takes place immediately after the 
marriage, wherefore the conception must Oe 
considered as having take i place prior to the 
divorce, that is, within the marriage. 

OBJECTION. It is not to be imagined that 
conception should take place at the time of 
marriage, as it is a consequence of the carnal 
act, which happens posterior to it ; how 
therefore, can it be established that the con- 
ception took place before divorce, since the 
latter occurs upon the instant of the marriage? 

REPLY. Conception may be imagined upon 
the instant of the marriage, as it is possible 
that the man may marry the woman whilst in 
the commission of the carnal act, and conse- 
quently, that marriage and conception may 
have taken place at the same instance . and 
as genealogy is a matter, the establishment of 
which is of great moment, this supposition 
has therefore been adopted : and the dower 
is incumbent, because the descent of the 
child being established in him, he is vir- 
tually held to have cohabited with his wife ; 
and it is due on account of consummation. 

The parentage of a child born two years 
after reversible divorce is established in the 
divorce. IF a man repudiate his wife by 
a divorce reversible, and she bring forth a 
child at the end of two years, or more, from 
the time of the divorce, the parentage of the 
child is established in him, and the divorce 
is reversed, provided she had not before 
declared the accomplishment of her Edit, 
because it is possible that her pregnancy 
may have taken place during Edit, as the 
Tohar (or term of purity) of some women 



* This means any time between six months 
and two years from the date of the marriage 
as the former of these is held to be the 
shortest, and the latter the longest possible 
term of pregnancy. 



BOOK IV. CHAP. XIII. 



DIVORCE. 



135 



is much longer than that of others, which 
circumstance may have protracted its con* 
tinuance : but if she be delivered of a child 
within less than two years from the 
divorce, she becomes completely separated 
from her husband, on account of the com- 
pletion of her Edit by delivery ; and in this 
case also the parentage of the child is 
established in the husband, because it is as 
possible that the conception may have taken 
place previous to divorce (that is, within the 
marriage), as it is that it may have taken 
place after divorce (that is, within the Edit) : 
but yet reversal is not established, because, 
as it is possible that conception took place 
after divorce, so it is also possible that it took 
place before divorce : wherefore reversal can- 
not be established, on account of the doubt 
which exists on this point : but where the 
woman is not delivered until after two years, 
reversal is established, as the conception is 
posterior to divorce, and must be attributed 
to the husband, since no charge of adultery 
has been advanced against the wife, where- 
fore it is evident that he has had connexion 
with her during Edit, a circumstance by 
which reversal is established. 

And so also of the child born within two 
years after triplicate or irreversible divorce. 
I? a man repudiate his wife either by three 
divorces, or by an irreversible divorce, and 
she be delivered of a child within less than 
two years from the period of the divorce, the 
parentage is established in him, as it is possi- 
ble that the pregnancy may have existed at 
that time ; and the right of cohabitation Hoes 
not positively appear to have been dissolved 
previous to pregnancy, whence the parentage 
is established in this manner for the sake of 
caution. But if the delivery were not to take 
place until after the expiration of two years 
from the period of separation, the parentage 
of the child is not established, as pregnancy 
in that case evidently appears to have taken 
place posterior to divorce, and consequently 
the child cannot be supposed to be begotten 
by the man in question, since to him carnal 
connexion with the woman is unlawful : yet 
if he claim the child as his own, the parentage 
is established in him, as he here takes it 
1 upon himself, and it may be accounted for 
by supposing him to have had connexion with 
the woman, erroneously, during her Edit. 

And so likewise of a child born of a wife 
under age within nine months after either 
irreversible or reversible divorce. IT a man 
repudiate, by an irreversible divorce, a wife 
who is under the age of puberty, but yet 
uch an one as may admit of carnal con- 
nexion, and she bring forth a child after the 
expiration of nine months from the time 
of divorce, the parentage of the child is 
not established in him ; but if the delivery 

uru^ le S th ? n nine months, it is 
established. This is according to Haneefa 
and Mohammed, Aboo Yoosaf says that 
the Parentage is established in the man, 
although the child, should not be born within 
less than two years from the period of divorce, 



because she was under Edit, and it is possible 
that the pregnancy may have existed at the 
time of the divorce, and she not have declared 
the accomplishment of her Edit, wherefore 
this infant wife is the same as a full-grown 
woman. The agrument of Haneefa and 
Mohammed is that the Edit, of the wife is 
in the case appointed to be counted by 
months, therefore it is accomplished at the 
expiration of three months, by the rule of 
the law. independent of any declaration on 
her part ; if, therefore, she be delivered of 
a child within less than six months from the 
end of that term which completes her Edit, 
the parentage of the child is established ; 
but, if she bring not forth until after that 
time, the parentage is not established, as it 
anpears to have been begotten at the time 
when she was not a partner of the husband's 
bed, for the case treats of a girl irreversibly 
divorced under puberty, and consequently 
not subject to the menstrual discharge, and 
whose Edit is therfore completed by the 
lapse of time, namely, three months, where- 
fore it is not possible that pregnancy should 
have existed at the time of divorce ; and the 
right of cohabitation appears to have un- 
doubtedly expired before pregnancy, so that 
the descent cannot be established. And if the 
wife under these circumstances be repudiated 
by a reversible divorce, the rule is the same 
(with Haneefa and Mohammed) as before re- 
cited. Aboo Yoosaf savs that the parentage 
of the child is established in the husband if 
it be born within twenty -seven months from 
the time of divorce, as it must be allowed 
that he may have had connexion with her ajt 
the latter end of the term of three months, 
which constitutes her Edit, and she be deli- 
vered within the longest term of pregnancy 
admitted by the law, namely two years. But 
if the infant wife declare her pregnancy to 
have taken place during Edit, the rule is 
then the same as with respect to grown, 
women i that is to say, the parentage of the 
ch'ld is established in the husband, as her 
puberty is proved by her own affirmation. 

The parentage of a child born of a widow 
within two years after the decease of her 
husband is established in htm. IP a widow 
bring forth a child, the parentage is estab- 
lished in her husband, provided the delivery 
happen within two years from the time of his 
decease. -Ziffer says that if she be not de- 
livered until after six months from the time 
of the completion of the Edit of widowhood, 
in this case the parentage cannot be estab- 
lished, because her Edit, upon the lapse of 
four months and ten days, is completed by 
the ordinance of the law, as the Edit is, by 
the law, fixed to that time, and is therefore 
the same as if she were to declare the accom- 
plishment of her Edit, as in the case of the 
infant before mentioned. Our doctors, on 
the other hand, say that the Edit of the 
woman in question is not absolutely fixed 
at four months and ten days, but has also 
another mode of completion, namely, delivery 
since marriage with an adult woman is con. 



136 



DIVORCE 



[VOL. I. 



sidered as a cause of pregnancy ; contrary to 
the case of a girl under puberty, because the 
natural state of such an one is an incapacity 
to bear children, as an infant is not a subjec 
of impregnation until she attain maturity 
and concerning the maturity of the in fan 
there is a doubt. 

And so also of a child bnn within si 
months after the wife declaring her Edit to 
have expired. IF a woman under Edit de 
clare the same to be accomplished, and be 
afterwards delivered of a child within less 
than six months from the time of her declara 
tion, the parentage of the child is established 
as it is evident that her declaration was un- 
founded, and is consequently null : but ii 
she be delivered after six months from the 
time of her declaration, the parentage is not 
established, because nothing appears in this 
case to annul her declaration, as it is possible 
that her pregnancy may have occurred aftei 
that. 

Whatever be the occasion of the Edit. 
THIS reasoning applies to every woman 
under Edit, whatever the occasion may be 
whether divorce reversible or irreversible, or 
the decease of her husband ; or of whatevei 
description or nature, whether it be counted 
by months, or by the return of the courses. 
The birth must be proved by evidence 
WHEN a wonvm under Edit is delivered of 
a child, the parentage is not established, 
(according to Haneefa), unless the birth be 
proved by the evidence of two male witnesses 
or of one male and two females. This is a rule 
where there is no apparent pregnancy, or 
where the same is not acknowledged by the 
husband ; but if the pregnancy be apparent, 
or the husband have acknowledged it, the 
parentage is established independent of the 
testimony of witness. The two disciples 
maintain that, in all cases, the .parentage 
is established upon the testimony of one 
woman, because the husband's right of co- 
habitation still continues during Edit, and 
it is this right which occasions the fixing of 
the parentage of a child upon the husband, 
wherefore nothing more is required that 
some person prove the birth, and the identity, 
by testifying "This is the child of which 
such a woman was delivered," and thus 
much may be sufficiently proved by the testi- 
mony of a single woman, in the same manner 
as it is during marriage, in a case where 
the husband disputes the child's identity. 
Haneefa, on the other hand, argues that the 
Edit is accomplished by the woman's decla- 
ration of delivery ; but the mere completion 
of Edit is not proof, and the descent still 
remains to be first established, for which 
reasotf%4s that complete proof (that is, the 
testintijBv of two men, or of one man and two 
wornfcjKs made a condition ; but it would 
J:>e oth<$$/ise if the pregnancy were apparent, 
or acknowledged by the husband, as in this 
tasf the parentage is established prior to the 
birth : and the*child's identity is there ascer- 
tained by the identity -of one woman, the 
e! for instance. 



The parentage of child born of a widov, 
when uncontr averted, is" established, in her 
deceased husband, independent, of evidence* 
IF a man under Edit from the death of her 
husband bring forth a child and declare it 
to be his, and the heirs confirm her assertion, 
though no person hear evidence to the birth, 
the child is held to be descended of the hus- 
band, according to all our doctors.* This, 
with respect to inheritance, is evident, as 
inheritance is a sole right of the heirs, * and 
consequently their testimony or acknowledg- 
ment is to be credited in every matter which 
affects it. -A question, however, may arise in 
the case whether the parentage of the child 
be by such testimony established with respect 
to others than those heirs : and upon this the 
learned in the law observe, that if those heirs 
be persons of a description capable of being 
admitted as witness, the parentage is estab- 
lished with respect to all others as well as 
themselves, because their testimony amounts 
to proof, for which reason some doctors re- 
quire that their confirmation of the woman's 
assertion be delivered in the form of evidence, 
but the necessity of this is denied by others, 
because the establishment of parentage, with 
respect to the rest of mankind, is a necessary 
consequence of its establishment with respect 
to the immediate heirs of the deceased by 
their confirmation; and where a matter^ is 
once fully established upon any particular 
ground, no necessity exists for any further 
conditions with respect to its establishment. , 
A child born within less than six months 
after marriage is not the offspring of that 
marriage ; but if after six months it is so, 
independent of the husband's acknowledg- 
ment ; or upon the evidence of one witness 
the birth where he denies it : and Lean is 
incumbent, if he persist in his denial ; and 
the wife's testimony is to be credited in respect 
to the date of the marriage. If a man marry 
a womah, and she bring forth a child within 
tfess than six months after the marriage, the 
safrentage of the child is not established in 
:he husband, as pregnancy in that case ap- 
pears to have existed previous to the mar- 
riage, and consequently cannot be derived 
Tom him ; but if she be delivered after six 
months, it is established, whether he acknow- 
edge it or not, because then the marriage 
appears to have existed at the time of im- 
pregnation, and the term of pregnancy is 
complete. If, moreover, the husband deny 
the birth, it may be proved by the evidence 
of one woman, after which the parentage is 
established in virtue of the marriage ; and 
such being the case, if he persist in denying 
:he child, imprecation becomes incumbent, 
DC cause his denial then amounts to an im- 
putation on his wife's chastity, since it im- 
plies a charge of adultery against her. And 
f, upon the birth of a child, a dispute were 
o arise between the husband and wife, he 



This means, at whatever time the child 
! born, after the husband's decease. 



BooKlV, CHAP. XIII.] 



DIVORCE 



137 



asserting that he had married her only four i 
months before , and she maintaining that 
they had been married six months, the de- ; 
claration of the wife is to be credited, and ' 
the (child belongs to the husband, because j 
apparent circumstances testify for the wife, 
as it appears that her pregnancy has been a 
consequence of marriage and not of whore- 
dom* A question has arisen among our 
doctors whether the woman's assertion, is to 
be credited without being continued by oath? 
The two disciples hold that it requires her 
oath ; but Haneefa maintains the contrary 
opinion. 

Divorce suspended upon the birth of a child 
cannot take place on the evidence of one 
woman to , the birth. IF a man suspend 
divorce upon the circumstance of his wife's 
bearing a child, by saying to her, "upon 
being delivered of this child you are di- 
vorced/' and a woman afterwards give 
testimony to her being delivered, yet divorce 
does not take place according to Haneefa. 
The two disciples maintain that divorce takes 
place, because the evidence of a single woman 
suffices in ail such matters as are improper 
to be held by men; and the evidence of 
one woman to a birth being admitted, it is 
also to be admitted with respect to whatever 
proceeds from the birth, which in the pre- 
sent instance is divorce. The argument of 
Haneefa is that the woman, in this case, 
stands as a plaintiff for penalty against her 
husband, and he appears as the defendant, 
wherefore her claim cannot be established 
but by complete proof. The foundation of 
this is that the evidence of a woman is 
admitted with respect to child-birth from 
necessity only, and has therefore no effect 
with respect to divorce, since that is a matter 
altogether distinct from child-birth, and un- 
connected with it, although such connection 
appear to exist from the peculiar circum- 
stances of the present case. But if the 
husband acknowledge the pregnancy, divorce 
takes place upon the woman independent pi 
the evidence of others, according to Haneefa. 
The two disciples hold that in this case also 
the testimony of the midwife is necessary, 
because proof is indispensable to the establish- 
ment of a Da wee Hins, or claim of penalty, 
and the evidence of the midwife amounts to 
proof, according to what was before said. 
The arguments of Haneefa are twofold ; 
FIRST, the acknowledgment of pregnancy 
amounts to an acknowlegment of that which 
pregnancy induces* and extends thereto, and 
that thing is child-birth ; SECONDLY, the 
husband, in acknowledging the pregnancy, 
declares his wife a trustee, as the child is a 
deposit in her possession, and consequently 
her word is to be credited in the surrender 
of the deposit, as much as that of any other 
trustee. 

The term of pregnancy is from six months 
to two years. THE longest term of preg- 
nancy is two years, because of the declaration 
of Aysha, "the child does not remain in the 



mother's womb beyond two years :" and the 
shortest term is six months, because the 
sacred text says, "THE WHOLE TERM" OF 
PREGNANCY AND WEANING is THIRTY 
MONTHS ;" and Ibn Abbas has Said that 
the term of suckling is two years, wherefore 
six months remain for the pregnancy. 
Shafei has said that the longest term of 
pregnancy extends to four years ; but the 
text here quoted, and the opinion of Ibn 
Abbas as above, testify against him. It is 
probable that Shafei may have delivered 
this opinion upon hearsay, as this is a 
matter which does not admit of reasoning. 

Case of a man divorcing a wife who is a 
slave, and then purchasing her. IF a* man 
marry a female slave, and afterwards divorce 
her, and then put chase her, and she be 
delivered of a child within less than six 
months from the day of purchase, the 
parentage is established in him ; but if she 
be delivered after six months, the parentage 
is not established ; because, in the first 
instance, the child is considered as born of a 
woman under Edit, conception appearing to 
have taken place before purchase ; but in 
the second instance, it is regarded as slave- 
born, as the length of the term of pregnancy 
here admits of conception being referred to 
a time subsequent to purchase ; and the 
child thus appearing to be born (not of a 
wife, but) of a slave, his acknowledgment 
requisite to the establishment of its parent- 
age. What is not advanced proceeds upon 
the supposition of the slave being repudiated 
by a single divorce, reversible or irreversible, 
or by Khoola : but if she be repudiated by 
two divorces, the parentage of the child is 
established, if it be born within two years 
from the date of the divorce, because in this 
case she is rendered uulawful to her husband 
by the rigorous prohibition, whence the 
pregnancy can be referred only to a time 
previous to divorce, since, under such a 
circumstance she is not rendered lawful to 
the man by his subsequent purchase of her. 

Miscellaneous cases IF a man say to his 
female slave, "if there be a child in your 
womb it is mine/' upon a woman afterwards 
bearing testimony to the birth, the slave 
becomes Am-Walid to that man, because 
here all that is requisite is to prove the 
child's indentity, by showing that "such a 
woman has been delivered of such a child," 
and this is sufficiently ascertained by the 
testimony of the midwife, according to all 
our doctors, 

IP a man say of a boy, "this is my son/' 
and afterwards die, and the mother come 
declaring herself to be the wife of the 
deceased, she must be considered as such, 
and the boy as his child, and they both 
inherit of him. It is recorded in the Na- 
wadir that this rule proceeds upon a favour- 
able construction of the law, for analogy 
requires that the woman should not inherit, 
since descent is established not only in 
virtue of a valid marriage, but also of an 



,138 



DIVORCE. 



(VOL. I 



invalid marriage, or of erroneous carnal 
connexion, or of possession by right of 
property, and therefore the main's declara- 
tion that ''this is his son" does not amount 
to an acknowledgment of his having mar- 
rie,d the mother : but the reason for a more 
favourable construction of the law here is, 
that the case supposes the woman to be one 
whose freedom and materal right in the 
child are matters of public notoriety, and 
the validity of a marriage is ascertained 
by circumstances. But if the woman be 
not known to be free, and the heirs of the 
husband maintain that she is only an Am- 
Walid, she is not entitled to any inherit- 
ance, because the mere appearance of freedom 
(supposing the case to occur in a Mussulman 
territory), although it defend the party 
from slavery, is not sufficient to establish a 
claim of inheritance. 



CHAPTER XIV. 

OF HIZANIT, OR THE CARE OF INFANT 
CHILDREN 

In case of separation, the care of the infant 
children belongs to the wife. IF a separation 
take place between a husband and wife, who 
are possessed of an infant child, the right 
of nursing and keeping it rests with the 
mother, because it is recorded that a woman 
once applied to the Prophet; saying "O 
Prophet of GOD ! this is my son, the fruit 
of my womb, cherished in my bosom and 
suckled at my breast, and his father is de- 
sirous of taking him away from me into his 
own care ;" to which the Prophet replied, 
"thou hast a right in the child prior to that 
of thy husband, so long as thou dost not 
marry with a stranger : M moreover, a mother 
is naturally not only more tender, but also 
better qualified to cherish a child during in- 
fancy, so that committing the care to her is 
of advantage to the child ; and Siddeek 
alluded to this, when he addressed Omar on 
a similar occasion, saying, "the spittle of the 
mother is better for thy child than honey, O 
OMAR V' which was said at a time when 
separation had taken place between Omar 
and his wife, the mother of Assim, the latter 
being then an infant at the breast, and Omar 
desirous of taking him from the mother ; and 
these words were spoken in the presence of 
many of the companions, none of whom 
contradicted him : but the Nifka or sub- 
sistence of the child is incumbent upon the 
father, as shall be hereafter explained. It 
Is to be observed, however, that if the 
mother refuse to keep the child, there is 
no constraint upon her, as a variety of 
causes may operate to render her incapable 
of the charge. 

Order of precedence in Hiztnit, after the 
mother. IF the mother of an infant die, 
the right of Hizanit (or infant education) 
rests with the maternal grandmother, in pre- 



ference to the paternal, because it originate* 
in, and is derived from, the mother ; but if 
she be not living, the paternal grandmother 
has then a right prior to any oth-r relation 
she being as one of the child's mothers (whence 
it is that she is entitled to a sixth of the 
effects of a child of her son, which is -the 
mother's share*) ; and she must, moreover, be 
considered as having a more tender interest 
in her own offspring than any collateral 
relation. If there be no grandmother living, 
in this case a sister is preferable to either 
a maternal or paternal aunt, as she is the 
daughter of the father and mother, or of one 
of them, whence it is that phe would take 
place of the aunts in inheritance,- (according 
to one tradition, the maternal aunt is pre- 
ferable to a half-sister by the father side, the 
Prophet having said, "the maternal aunt is 
as a mother"). A full sister, also, has pre- 
ference to an half-sister, maternal or paternal ; 
and a maternal sister to a paternal sister ; 
because the right of Hizanit is derived to 
them through the mother. The maternal aunt 
has preference to the paternal, because pre- 
cedence is given, in this point, to the mater- 
nal relation. The same distinction 'also' pre- 
vails among the aunt as among the sisters ; 
that is, she who is doubly related has a 
preference to her who is singly related ; thus 
the maternal aunt, who is full sister to the 
mother precedes an half sister, maternal or 
paternal : and, in the same manner, a mater- 
nal sister precedes a paternal sister ; and so 
also of the paternal aunts. If, however, any 
of these women, having the right of Hizanit, 
should marry a stranger, her right is thereby 
annulled, an account of the tradition before 
quoted, and also because, where the husband 
is a stransrer. it is to be apprehended that he 
may treat the child unkindly : where the 
woman, therefore, who has charge of an 
infant marries, it is neither advantageous 
nor advisable that the infant remain with 
her, unless the person she marries be a 
relation, as where the mother, for instance, 
having charge, marries the child's paternal 
uncle, or the maternal grandmother marries 
the paternal grandfather, because these 
men, being as parents, it is to be expected 
that they will behave with tenderness: 
and so also of any other relation within the 
prohibited degrees, for the same reason. 

ANY woman whose right of Hizanit is an* 
nulled by her marrying a stranger recovers 
the right by the dissolution of the marriage, 
the objection to her exercise of it being 
therebv removed. 

fit defeat of the maternal, it rests with the 
nearest paternal r elation : IF there be no 
woman to whom the right of Hizanit apper- 
tains, and the men of the family dispute it, 
in this case the nearest paternal relation has 
the preference, he being the one to whom 
the authority of guardian belongs (the de- 



*This must mean, in case of the mother's 
death. 



BOOK IV. CHAP. XIII. 



DIVORCE. 



139 



grecs of paternal relationship are treated or 
in their proper place): but it is to be ob- 
served that the child must not be entrusted 
to any relation beyond the prohibited degrees, 
such as the Mawla or emancipator of a s^ave, 
or the son of the paternal uncle, as in this 
there may be apprehension of treachery. 

Length of the term of Htzanit. THE right 
of Hizanit, with respect to a male child, ap- 
pertains to the mother; grandmother, or so 
forth, until he become independent of it him- 
self, that is to say, become capable of shitt- 
ing, eating, drinking, and performing the 
other natural functions without assistance; 
after which the charge devolves upon the 
father, or next paternal relation entitled to 
the office of guardian, because, when thus 
far advanced, it then becomes necessary to 
attend to his education in all branches of 
useful and ornamental science, and to ini- 
tiate him into a knowledge of men and man- 
ners, to effect which the father or paternal 
relations are best qualified (Kasaf says that 
the Hizanit, with respect to a boy. ceases at 
the end of seven years, as in general a child 
at that at?e is capable of performing all the 
necessary offices for himseif, without assist- 
ance). But the right of Hizanit with respect 
to a girl appertains to the mother, grand- 
mother, and so forth, until the first appear- 
ance of the menstrual discharge (that is to 
say, until she attain the age of puberty), 
because a girl has occasion to learn such 
manners and accomplishments as are proper to 
women, to the teaching of which the female 
relations are most competent ; but after that 
period the charge of her properly belongs to 
the father, because a girl, after maturity, 
requires some person to superintend her 
conduct, and to this the father is most 
completely qualified. It is recorded from 
Mohammed that the care of a female child 
devolves upon the father as soon as she 
begins to feel the carnal appetite,** as she 
then requires a superintendence over rur 
conduct ; and it is universally admitted Uhat 
the right of Hizanit of girls is restricted to 
that period, with respect to all the female 
relations except the mother and grandmother, 
It is written in the Jama Sagheer, that the 
right of Hizanit, with any except the mother 
or grandmother, discontinues upon the girl 
becoming capable of performing natural 
offices without assistance, because no other 
is entitled to require any service of her 
(whence it is that they cannot hire her as a 
servant to others), and such being the case 
the end (namely, the girl's education) cannot 
be obtained: out it is otherwise with the 
mother or grandmother, as they are invested 
with a legal right to require her services. 

A slave has the right upon obtaining her 
freedom. IF a man contract his female slave 



*Thls is supposed by the Mussulmans to 
commence some time before the appearance 
of the menstrual discharge, at between 
eleven and twelve years of age. 



or Am-Walid, in marriage to any person, and 
she bear a child to her husband, ana the 
master afterwards emancipate her, she then 
becomes (with respect to the child) as a free 
woman ; that is, upon becoming free she 
obtains her right of Hizanit which had not 
existed while she was a slave, because her 
service, as a slave, would necessarily inter- 
fere with the proper discharge of the duties 
of Hizanit. 

And also an infidel mother the wife of a 
Mussulman. A ZIIKMEEA, or female infidel 
subject, married to a Mussulman, is entitled 
to the Hizanit of her child, although he b 
a Mussulman like the father ; but this only 
so long as the child is incapable of forming 
any judgment with respect to religion, and 
whilst there is no apprehension of his im- 
bibing an attachment to infidelity ; but when 
this is the case, he must be taken from the 
mother, because, although it be for the child's 
advantage to be under her care until that 
period, his remaining longer with her might 
prove injurious. 

Children after the term of llizanit, re- 
main sol ely under the care of the father.* A 
BOY or girl, having passed the period of 
Hizanit have no option to be with one 
parent in preference to the other, but must 
necessarily thenceforth remain in charge of 
the father. Shafei maintains that they have 
an option to remain with either parent, be- 
cause of a tradition of the Prophet to this 
effect. The argument of our doctors is, that 
young persons, from want of judgment, will 
naturally wish to stay with the parenfc who 
treats them with most indulgence, and lays 
them under least restraint, wherefore giving 
them a choice in this matter would not be 
tenderness, but rather the reverse, as being 
contrary to their true interest ; and it ap- 
pears in the Nakl Saheeh that the companions 
withheld this option from children. With 
respect to the tradition cited by Shafei, it 
may be observed that, in the instance there 
alluded to, where the Prophet gave a boy his 
choice, h* first prayed to GOD to direct him 
therein, and the boy then chose, under the 
influence of the Prophet's prayer. 

Section 

A mother cannot remove with her child to 
a strange place, IF a divorced woman be 
desirous of removing with her child out of 
a city, she is not at liberty to do it ; but "yet 
if she remove with her child out of a city, 
and go to her native place, where the con- 
tract of her marriage, was executed, in this 
case her removal is lawful, because the father 
is considered as having also undertaken to 
reside in that place, both in the eye of the 
law. and according to common usage, for the 
Prophet has said, "Whoever marries a 
woman of any city is thereby rendered a 
DENIZEN of that city;" and hence it >s, 
that if an alien woman were to come into the 
Mussulman territory, and there to marry- an 
infidel subject, she also becomes an infidel 
subject; it is to observed, however, that 



140 



DIVORCE. 



[VOL. I. 



this rule does not apply to an alien' man, 
that is to say, if an alien man were to come 
into the Mussulman territory, and there to 
marry a female subject, he is not thereby 
rendered a subject ; for if he choose, he may 
divorce this wife and return to his own 
country. 

I* a divorced woman be desirous of remov- 
ing with her child to a place which is not 
the place of her nativity, but in which her 
marriage contract was executed, she is not 
at liberty to do it. This demonstrated by 
Kadooree in his compendium, and also ac- 
cords with what is related in the Mabioot. 
The Jama Sagheer says that she may take 
her child thither, because where a marriage 
contract is executed in any place, it occasions 
all the ordinances thereof to exist and have 
force in that place, in the same manner as 
sale amounts to a delivery of the article sold 
in the place of sale ; and a woman's right to 
the care of her children is one of the ordi- 
nances of marriage, wherefore she is entitled 
to keep her child in the place where she was 
married, although she be not a native of 
that place. The principle upon which the 
Mabsoot proceeds in this case is, that the 
execution of a contract of marriage in a 
place merely of casual residence (such as the 
stage of a journey, does not constitute it a 
home, according to general usage, and this 
is the better opinion. In short, to the pro- 
priety of the woman carrying her child from 
one place to another, two points are essen- 
tially requisite one. that she be a native of 
the place to which she goes ; and the other, 
that her marriage contract has been there 
executed ; this, however, means only where 
the places are considerably distant ; but if 
they be so near that the father may go to see 
his child and return the same night, there is 
no objection to the wife going to the other 
place with the child, and there remaining ; 
and this, whatever be the size or degree of 
the places, whether cities or villages ; nor is 
there any objection to her removing from 
the village to the city or chief town of a dis- 
trict, as this is in no respect injurious to the 
father, and is advantageous to the child, 
since he will thereby become known and ac- 
quainted with the people of the place ; but 
the reverse [that is, her removal from the 
city to a village], would be injurious to the 
child, as he would thereby be liable to ac- 
quire the low manners and mean sentiments 
of villagers ; wherefore a woman is not at 
liberty to carry her child from a city to a 
village,* 



CHAPTER XV. 

OF NIFKA, OR MAINTENANCE 

Definition of the t<<rm. NIFKA, in the 
language of the law, signifies all those things 
whic*n are necessary to the support of life, 
such as food, clothes, and lodging ; many con- 
fine it solelv to food. 



Section I 

Of the Nifka of the Wife. 

The subsistence of wife is incumbent upon 
her husband. WHEN a woman surrenders 
herself into the custody of her husband, it is 
incumbent upon him thenceforth to supply 
her with food, clothing, and lodging, whether 
she be a Mussulman or an infidel, because 
such is the precept both in the Koran and 
in the traditions ; and also, because main- 
tenance is a recompense for the matrimonial 
restraint : whence it is that where a person 
is in custody of another on account of any 
demand, or so forth, his subsistence is in- 
cumbent upon that other, as when a public 
magistrate, for instance, is imprisoned on 
account of any mal-administration in his 
office, in which case his subsistance must 
be provided from the public treasury ; and as 
the authorities upon which this proceeds 
make no distinctions between a Mussulman 
and an infidel, the rule holds the same with 
respect to either in the present case. 

In proportion to the rank and circumstances 
of the parties. IN adjusting the obligation of 
the Nifka, or maintenance of a wife, regard is 
to be had to the rank and condition both of her 
and her husband : thus if the parties be both 
wealthy, he must support her in an opulent 
manner : if they be both poor, he is required 
only to provide for her accordingly : and if 
he be rich, and she poor, he is to afford her 
a moderate subsistence, such as is below the 
former and above the latter. The compiler 
of this work says that this is the opinion 
adopted by Khasaf ; and that decrees pass 
accordingly. Koorokhee is of opinion that 
the rank and condition of the husband alone 
is to be regarded (and such also is the doc- 
trine of Shafei), because the sacred text says, 
"LET HIM SUPPORT HER ACCORDING TO HIS 
ABILITY." The ground of Khasaf s opinion 
is a tradition respecting the Prophet, who, 
on a woman applying to him for his judg- 
ment upon this point, said to her, "take 
from the property of your husband what- 
ever may suffice for the subsistence of your- 
self and your child in the customary way ;'* 
for which it appears that the circumstances 
of the woman are to be regarded as well as 
those of the man, for maintenance is incum- 
bent only so far as may suffice for the pur- 
pose intended by it, and as a womam in mean 
circumstances has no occasion for the same 
subsistence as one who is accustomed to live 
in affluence, such is (with respect to her) 
unnecessary ; and as to the text above 
quoted by Shafei, it means no more than 
that if the woman be in affluent circum- 
stances, and her husband otherwise, he shall 
suppose her according to his ability, and 
the remainder, or difference, shall be a debt 
upon him. Ity the expression '-customary 
way," in the tradition quoted by Shafei, is 
to be understood a middling or moderate 
way, that is, a medium between the circum- 
stances of the wife and those of the hus- 
band where the former happens to be rich 



BOOK IV. CHAP. XV ] 



DIVORCE. 



141 



and the latter poor ; and as the Prophet in 
his decision left this to the judgment of 
the parties themselves, the proportion is not 
specifically determined by the law. ShJti 
has so determined it, saying that the Nifka 
or maintenance incumbent upon a husband 
in behalf of his wife, if he be opulent, is two 
Mids, or about one thousand Dirms* an- 
nually, if he be poor, one Mid : and if 
in middling circumstances, one and a half : 
this, however, is not admitted, because a 
thing declared to be incumbent "so far as 
may suffice" cannot be legally fixed at any 
specific rate, as the proportion must neces- 
sarily vary according to circumstances. 

And this, although she withhold herself 
on account of her dower. IF a woman re- 
fuse to surrender herself to her husband, on 
account of her dower (that is, on account of 
its not hav ; ng been paid to her), her main- 
tenance does not drop, but is incumbent 
upon the husband, although she be not yet 
within his custody, since her refusal is only 
in pursuance of her right, and consequently 
the object ; on to the matrimonial custody 
originates with the husband. 

But riot if she be refractory. IF a wife be 
disobedient or refractory, and go abroad with- 
out her husband's consent, she is not entitled 
to any support from him, until she return 
and make submission, because the rejection 
of the matrimonial restraint in this instance 
originates with her ; but when she returns 
home, she is then subject to it, for which rea- 
son she again becomes entitled to her support 
as before. It is otherwise where a woman, 
residing in the house of her husband, refuses 
to admit him to the conjugal embrace, as she is 
entitled to maintenance, notwithstanding her 
opposition, because being then in his power, 
he may, if he please, enjoy her by force. 

Or an infant incapable of generation. IF 
a man's wife be so young as to be incapable 
of generation, her maintenance is not in- 
cumbent upon him, because although she 
should be within his custody, yet as an 
obstacle exists in her to the carnal embrace, 
this is not the custody which entitles to 
maintenance, that being described "custody, 
for the purpose of enjoyment/ 1 which does 
not apply to the case of one incapable of the 
act : contrary to the case of the sick woman, 
to whom maintenance is due, although she 
be incapable, as shall be hereafter demon- 
strated. Shafei says that maintenance is due 
to an infant wife, because he holds it to be a 
return for the matrimonial propriety , in the 
same manner at it is with respect to a slave 
for the propriety in his personal service. To 
this however, our doctors reply that the 
dower is the return for the matrimonial pro- 
priety, and one thing does not legally admit 
of two returns ; wherefore, in the case of an 



infant wife, the dower is due but not main- 
tenance. 

But it is due to an adult wife from an 
infant husband BUT if the husband be an 
infant incapable of generation, and the wife 
an adult, she is entitled to her maintenance 
at his expense, because, in this case delivery 
of the person has been performed on her 
part, and the obstacle to the matrimonial 
enjoyment exists on the part of the husband, 

It is not due where the wife is impri- 
soned for debt. IF a woman be imprisoned 
for debt, her husband is not required to sup- 
port her, because the objection to the matri- 
monial custody does not in this case originate 
with him, whether her imprisonment be 
owing to herself (as in a case of wilful delay 
and contumacy) or otherwise (as where she 
is poor and unable to discharge the debt). 

Or forcibly carried off. AND, in the same 
manner, if a woman be forcibly seized and 
carried off by any person, she has no claim 
to maintenance from her husband ; and so 
also, if a woman go upon a pilgrimage, under 
charge of a relation within the prohibited 
degrees, because she is not then in custody 
of her husband, and her not being so is occa- 
sioned by her own voluntary act. 

Or goes upon a pilgrimage. IT is recorded 
from Aboo Yoosaf that a woman upon a pil- 
grimage is entitled to a maintenance from 
her husband, as her undertaking the indispen- 
sable pilgrimage* Is a sufficient pretext for her 
leaving him ; but he allows her only a Nifka- 
Hizr, or support as in a settled place ; and 
not a Nifka-Sifr, or support as upon a jour- 
ney ; as the former only incumbent upon 
the husband, not the latter 

Unless she be accompanied by the husband. 
BuT if the husband accompany his wife 
upon her pilgrimage, her maintenance is then 
incumbent upon him according to all our 
doctors, because in this case she continues m 
his custody ; but she is entitled to Nifka-Hizr 
only, not to a Nifka-Sifr, as he is not the OcCa- 
sion of her travelling, whence it is that he is 
not obliged to furnish her with a conveyance. 

It continues during her sickness.--!? a 
woman fall sick in her husband's house, 
she is still entitled to a maintenance. 
This is upon a principle of benevolence, as 
analogy would suggest that she is not entitled 
to maintenance where she falls sick so far as 
to be incapable of admitting her husband to 
the conjugal embrace, since in this case she 
cannot be deemed in custody for the purpose 
of enjoyment ; but the reason for a more 
favourable construction of the law in this 
case is, that she still remains in custody, as 
her husband may associate and indulge m 
dalliance with her, and she may continue to 
superinted his domestic concerns, and the 
obstacle to carnal enjoyment is (like the men- 



*Dirms have varied in their value at 
different times, from twenty to twenty-five 
passing current for a Deenar. The sum here 
mentioned is from about eighteen to twenty - 
two pounds sterling. 



*Arab Hidj-Farz. It U incumbent upon 
all Moslamites to perform at least ?ne pil- 
grimage to Mecca, and this one is reckoned 
among the Firayez, or sacred ordinances, 
whence the above epithet. 



142 



DIVORCE. 



VOL. I. 



strual discharge) an accidental occurrence. 
It is recorded from Aboo Yoosaf that if a 
woman deliver herself into the custody of 
her husband, and then fall sick, she is still 
entitled to maintenance ; but if she fall sick 
first, and then deliver herself to him, she has 
no claim to maintenance until her recovery, 
as the surrender of her person is not in this 
case complete ; and the learned in the law 
admit this to be a proper distinction. 

A husband must maintain his wife's ser- 
vants. THE maintenance of the wife's ser- 
vant* is incumbent upon her husband, as well 
as that of the wife herself, provided he be in 
opulent circumstances, because he is obliged 
to provide his wife's maintenance, "so far as 
may suffice" (as aforesaid), and it is not suffi- 
cient, unless her servants also be supported, 
they being essential to her case and comfort ; 
but it is not absolutely incumbent upon him 
to provide a maintenance for more than one 
servant, according to Maneefa and Mo- 
hammad. Aboo Yoosaf says he must pro- 
vide maintenance for two servants, as one is 
required for service within the house, and 
the other out of doors The arguments of 
Haneefa and Mohammed on this point are 
twofold : FIRST, one servant may answer 
both purposes, whence two are unnecessary ; 
SECONDLY, if the husband were himself to 
undertake all the services required by the 
wife, it would suffice, and a servant would 
be unnecessary ; and, in the same manner, 
it suffices if he constitute any single servant 
his substitute therein ; wherefore a second 
servant is not requisite. The learned in the 
law say that the rate of maintenance due 
from an opulent busband to his wife's ser- 
vants is the same as that due from a poor 
husband to his wife, namely, the lowest 
that can be admitted as sufficient Haneefa 
says that a husband who is poor is not re- 
quired to find maintenance for his wife's ser- 
vants ; and this is an approved doctrine, as 
it is to be supposed that the wife of a POT 
man will serve herself. Mohammed holds 
that it is due from a poor husband, in the 
same manner as from one more opulent. 

Jf the husband be poor, the magistrate 
must empower the wife to raise subsistence 
upon his credit. If SL husband become poor, 
to such a degree as to be unable to provide 
his wife her maintenance, still they are not 
to be separated on this account, but the 
Kazee shall direct the woman to procure ne- 
cessaries for herself upon her husband's 
credit, the amount remaining a debt upon 
him. -Shafei says that they must be sepa- 
rated, because whenever the husband be- 
comes incapable of providingthis wife's main- 
tenance, he cannot "retain her with hu- 
manity" (as is required in the sacred writ- 
ings), and such being the case, it behoves 
him to divorce her ; and if he decline so to 
do, the Kazee is then to effect the separation 
s his substitute, in the same manner as in 
cases of emasculation or impotence : nay, the 
necessity for this is more urgent in the pre- 
sent instance than in either of those cases, 



as the maintenance is indispensable. To 
this our doctors reply that if a separation 
take place the right of the husband is de- 
stroyed in toto, which is a grievous injury 
to him ; whereas, if the wife be desired to 
procure maintenance for herself upon his 
credit, his right is by this means preserved 
with the smallest possible injury ; wherefore 
they are not to be separated, but the wife 
shall be directed to take up the articles ne- 
cessary for her subsistence upon his credit, 
as was already stated : -but the wife is in 
this case restricted in her expenses to a rate 
which must be determined by the Kazee. 

At a certain specified rate. THE Kazee 
cannot act as the substitute of the husband 
j in effecting a separation here, as in cases of 
emasculation or impotence, because property 
in marriage is only a dependant, or second- 
ary consideration, the primary object being 
procreation, and that which is a dependant 
merely cannot be put in competition with 
the original intent, upon which principle it 
is that the Kazee is empowered to effect a 
separation in either of the other two in- 
stances, as there the original intent is de- 
feated ; but it is not so in the present case. 
The advantage of the Kazee desiring the 
woman to procure a maintenance upon her 
husband's credit, and of his fixing the rate 
thereof, is that she is thereby enabled to 
make her husband responsible for the 
amount ; for if she contract any debt with- 
out this authority, the creditors claim lies 
against her, and not against her husband. 

To be varied according to any change in his 
circumstances IF the husband were in 
indigent circumstances at the time of the 
Kazee authoriziig the wife as aforesaid, and 
he have consequently determined her main- 
tenance at the rate of poverty, and the hus- 
band afterwards become rich and she sue 
for a proportionable addition to her main- 
tenance, a, decree must be given in her 
favpur, at- the rate of the maintenance differs 
according to the poverty or opulence of the 
husband. 

Arrears of maintenance not due unless the 
maintenance have been decreed by the Kazee 
or the rate of it previously determined on be' 
tween the parties. IP a length of time should 
elapse during which the wife has not re- 
ceived any maintenance from her husband, 
she is not entitled to demand any for that 
time, except when the Kazee had before de- 
termined and decreed it to her, or where she 
had entered into a composition with the hus- 
band respecting it, in either of which cases 
she is to be decreed her maintenance for the 
time past, because maintenance is an obliga- 
tion in the manner of a gratuity,* as by a 
gratuity is understood a thing due without 
a return, and maintenance is of this descrip- 
tion, it not being held (according to our 
i doctors) to be as a return for the matrimonial 



Arab,Sillit. By this is to be here under- 
stood a present or gratuity promised but not 
yet paid. 



f BooK IV. CHAP. XV] DIVORCE. 

propriety ; and the obligation of it is not 
valid but through a decree of the Kazee, 
like a gift, which does not convey a right to 
possession but through seisin, which estab- 
lishes possession : but a composition is of 
equal effect with a decree of the Kazee, in 
the present case, as the husband, by such 
composition, makes himself responsible, and 
his power over his own person is superior to 
that of the magistrate This reasoning does 
not apply to the case of dower, as that is 
considered to be a return for the use of the 
wife's person. 

Arrears of a decreed maintenance drop in 
case of the death of either party. IF the 
Kazee decree a wife her maintenance, and a 
length of time elapse without her receiving 
any and the husband should die, her main- 
tenance drops ; and the rule is the same if 
she should die ; because maintenance is a 
gratuity, respecting which the rule is that it 
drops in consequence of death, like a gift, 
which is annulled by the decease of either 
the donor or donee before seisin being made 
by the latter. Shafei says that the^ mainr 
tenance is .in all circumstances to be consi- 
dered as a debt upon the husband, in confor- 
mity with his tenet, that it is not a gratuity 
but a return, wherefore it cannot drop like 
demands of the former description. This 
was before replied to. 

Advances of maintenance cannot be re- 
claimed. Ira man "give his wife one year's 
maintenance in advance, and then die before 
the expiration of the year, no claim lies 
against the woman for restitution of any 
part of it. This is the doctrine of Haneefa 
and Aboo Yoosaf Mohammed says that she 
is entitled only to the proportion due for the 
term past, from beginning of the year 
till the husband's decease, the remainder 
being the right of his heirs ; if, therefore, the 
difference remain with her in substance, she 
must restore it ; or, if it do not remain, she 
is responsible for the value (and this also is 
the doctrine of Shafei, and the same differ- 
ence of opinion obtains in respect to clothes 
and apparel), because the wife in this case 
has received in advance the return for the 
matrimonial confineme*,*, to which she has a 
claim, in virtue of such v >nnnement, but her 
claim is annulled by the husband's decease, 
since she no longer remains confined, and 
consequently the return is annulled in pro- 
portion to the annulment of her claim, in the 
same manner as the stipend of a Kazee: The 
argument of the two Elders is that the main- 
tenance it a gratuity, of which the claimant 
has already taken possession ; and restitution 
j ?u gr c tult X cannot be demanded after 
death, the virtue of it beinq completed by 
!u! ? r Ve u fc ' as . ln a case f 8ift ; whence it is 
that it the maintenance were to perish in the 
woman s possession, without her consuming 
it, no part of it can be demanded of her, ac- 
cording to all the doctors, whereas, if it wete 
a return it might be demanded in a case of 
destruction, as well as in one of consump- 
tion, nor would there be any difference be- 



143 



tween the two. It is recorded from Moham- 
, med that if the proportion advanced do not 
exceed that of one month ; no restitution is 
required, as this proportion is inconsiderable, 
and stands as an allowance for present use. 

A slave may be sold for the maintenance of 
his wife, if the latter be free. IF a slave 
marry a free woman, her maintenance is a 
debt upon him, for the discharge of which he 
may be sold ; but this is only provided the 
marriage was with his owner's consent, as 
her maintenance being due from the slave 
the obligation to it must ultimately affect 
his owner ; the debt is therefore charged to 
the slave, in the same manner as one con- 
tracted in trade by a Mazoon, or privileged 
slave ; but his owner is at liberty to redeem 
him bv discharging the debt, necause the 
woman's right extends to her maintenance 
only, not to the slave's person : and if the 
slave die, her right to any arrear of main- 
tenance drops (and so also where he is killed), 
since it is a gratuity, as was already stated, 

A husband must maintain his wife, being 
a slave, were she resides with him.- IF a 
man marry the female slave of another, and 
her owner give her permission to reside in 
her husband's house, her maintenance is in- 
cumbent upon the husband, because she is 
then within his custody : but if she have not 
permission to reside with her husband, he is 
not responsible for her maintenance, as in 
I this case her custody is not established. 
I The term here applied to the permission 
j granted by the master [taboweeatj means 
! not only liberty to reside in the husband's 
j habitation, but also an exemption from all 
service ; wherefore, if any service be after- 
wards required of her, the maintenance from 
the husband drops, as custody which is the 
ground of her right to maintenance from 
him, necessarily ceases on such an occasion 
It is lawful for the master to require the 
service of his female slave, although he have 
granted her leave to reside with her hus- 
band, because such leave is not binding upon 
him, as is demonstrated in its proper place, 
But it is. to be observed that if the female 
slave voluntarily perform her master's ser- 
vice, without his calling upon her, her right 
to maintenance from her husband does not 
drop. 

And the same of Am-Walids. THESE 
rules apply equally to Am-Walids as to ab- 
solute slaves. 

Section II. 

A wife must be acco mmodated with a sepa- 
rate apartment.-*-lT i incumbent upon a 
husband to provide a separate apartment for 
his wife's habitation, to be solely and exclu- 
sively appropriated to her use, so as that 
none of the husband's family, or others, 
may enter without her permission and de- 
sire, because this is essentially necessary to 
her, and is therefore hef due the same as 
maintenance, for the word of God appoints 
her a dwellings-house as well as a subsis- 
tence ; and as it is incumbent upon a hu\>- 



144 



DIVORCE. 



[Votl. 



band to provide a habitation for his wifo, so 
he is not at liberty to admit any person to a 
share in it, as this would be injurious to her 
by endangering her property, and obstruct- 
ing her enjoyment of his society ; but if she 
desire it, the husband may then lawfully 
admit a partner in the habitation, as she by 
such a request voluntarily relinquishes her 
right ; neither is the husband at liberty to 
intrude upon his wife his child by another 
woman, for the same reason. 
. IF the husband appoint his wife an apart- 
ment within his own house, giving her the 
lock and key, it is sufficient, as the end is by 
this means fully obtained. 

But under the control of her husband, with 
respect to visitors, &c A HUSBAND is at 
liberty to prevent his wife's parents, or other 
relations, or her children by a former mar- 
riage, from coming in* to her, as her apart- 
ment or habitation is his property, which he 
may lawfully prevent any person from en- 
tering ; but he cannot prohibit them from 
seeing and conversing with her whenever 
they please, for if he were to do so, it would 
induce Katta Rihm, or a breach of the ties 
of kindred, and their seeing or conversing 
with her is in no respect injurious to him. 
Some have said that he cannot prohibit them 
from coming in to her, any more than from 
conversing with or seeing her, but he may 
prevent them from residing with her, as this 
might cause disturbance and inconvenience. 
Others have said that he cannot prohibit his 
wife from going to visit her parents, nor 
-prevent the parents from visiting her every 
Friday ; neither can he forbid her other 
relations from visiting her once a year ; and 
this is approved. 

Maintenance to the wife of an absentee is 
decreed out of his sub stance. If a woman's 
husband absent himself, leaving effects in 
the hands of any, person,, and that person 
acknowledge the deposit, and admit the 
woman to be the wife of the absentee, the 
Kazee must decree a maintenance to her out [ 
of the said effects ; and the same to the 
infant children of the absentee, and also to 
his parents. And the rule is the same if the 
Kazee himself be acquainted with the above 
two circumstances, where the trustee denies 
both or either of them. The argument upon 
which this proceeds is that where the above 
person acknowledges the woman to be the 
wife of the absentee, and also, that he has 
property of the latter in his hands, such 
acknowledgment amounts to an avowal of 
her being entitled to receive her right out of 
the said property, without the husband's 
consent, as a woman is authorized to it by 
law. 



* Although, by the customs of the east, 
men are not permitted to enter into the 
women's apartments without especial per- 
mission, yet it is not uncommon to converse 
with a woman through a curtain, or (as some 
part of this passage seems to imply) through 
it gate, 



OBJECTION, If a woman be decreed her 
maintenance out of the effects of her absent 
husband, in consequence of the trustee's 
acknowledgment, this admits the judgment 
of a magistrate against an absentee, which 
is illegal. 

REPLY.~The order of the Kazee is not in 
this case directly against an absentee, but 
only virtually, and by implication, because 
the above person is the Zoo-al-Yed, or 
immediate possessor of the property, and 
the acknowledgment of such an one 'is to be 
credited in anything affecting his trust, but 
more especially in the present case, since if 
he were to deny either the marriage or the 
deposit it would not be in the woman's 
power to sue him, for if she do so, and pro- 
duce witnesses in support of her plea, their 
evidence could not be received, as a trustee 
cannot be sued on a plea of marriage ; nor 
can the woman appear as plaintiff against 
him with respect to the property in his 
hands, since she is not the husband's agent : 
and the trustee's acknowledgment being 
credited, the Kazee, in consequence of it, 
issues a decree for the wife's maintenance, 
which must affect the husband of course ; 
and the decree of a Kazee. affecting an 
absentee in this way, is approved. If, more- 
over, the property of the absentee be in the 
hands of the person aforesaid in the way of 
Mozaribat, or as a debt, the rule holds the 
same as if it were a deposit. 

Unless that be of a nature different from 
what is necessary to her support WHAT is 
now said supposes the property to be .of the 
same nature with the woman's right, such as 
money, grain or cloth : but where it is 
otherwise, a maintenance must not be de- 
creed out of it, because, in this case, it can- 
not be furnished from it but by selling a 
part, and defraying the expense of it out of 
the amount ; and ail our doctors agree that 
the property of an absentee cannot be sold 
Haneefa is of this opinion, because the 
Kazee cannot sell the effects even of a 
person on the spot, but must require him to 
sell them, and discharge the maintenance 
with the amount ; and consequently he is 
prohibited from selling the property of an 
absentee, a fortiori. The two disciples also 
are of the same opinion, because, although 
they hold that the Kazee may dispose of the 
property of a person on the spot, for the 
discharge of his wife's maintenance, without 
his consent, yet this is only where he refuses 
to do so ; but the property of an absentee 
cannot be thus disposed of, as his refusal is 
not known. 

But she must give security that sh has not 
already received anything in advance. When 
the Kazee decrees a woman her maintenance 
out of the effects of her absent husband, it 
behoves him to take security from her for 
whatever she receives for the indemnity of 
the absentee, as it is possible that she may 
already have received her maintenance in 
advance, or that she may have been divorced, 
and her Edit be passed ; and the Kazee must 



BOOK IV. CKAP. XV. ] 



DIVORCE. 



145 



also require her to make oath that she has 
not received any part of her rminlenance in 
advance : contrary to a case where the Ka/.ee 
mikes a distribution of inheritance am ).ig 
present heirs, according to evidence, and 
they do not deny any knowledge of another 
heir, for in this case he does not require a 
similar security from them o-i behilf of 
another heir, who may hereafter appear, 
because the Makfool-le-hoo, or surety, is 
there unknown and undefined but in th> 
present case the surety is known, being the 
absent husband. 

It can bs decreed only to the i<i'/>, in/ant 
children, or parents of the absentee A 
KASSEE cannot decree maintenance, out of the 
effects of an absentee, in behalf of any but 
those already mentioned (namely, the wife, 
infant children, and parents of the absenUv), 
as they alone are authorized to receive a 
maintenance independent of any decree of 
the Kazee (that, in the present case, being 
only in aid of their right), whereas the other 
relations within the prohibited decrees are 
not entitled to any maintenance without a 
decree of the Kazee previously obtained for 
that purpose, as the o ?ligati'on of it with 
respect to them varies according to circum- 
stances, wherefore the Kazee decreeing it to 
them would amount to a judgment against 
an absentee, which is not allowed. 

No decree can be issued against an ab- 
sentee's property upon the bare testimony of 
his wife. IF the Kazee himself be not assured 
that the woman is the wife of the absentee 
and the trustee factor, or debtor, do not 
acknowledge her to be so, and she should 
offer to produce witnesses to prove that she 
is so, or, if the absentee should not have 
left any effects, and she offer to prove her 
marriage by evidence, with a view to obtain 
a decree authorizing her to procure a main- 
tenance upon the absentee's credit? still the 
Kazee cannot issue a decree arcordinfily, 
because this would be a judgment against 
an absentee, which is inadmissible. Zitfer 
says that it is the duty of the Kazee to hear 
the proofs, and (although he Cinnot decree 
the marriage to be thereby established) to 
order her a maintenance, as this is a tender- 
ness due to her, and no injury to the absentee, 
because, if he should a r terwards appear and 
confirm her assertion, she has only taken 
what was her right, or, if he should deny 
the marriage, an oath will be tendered to 
her (in case of her having no witnesses), 
and if she decline swearing, his assertion 
remains established ; but if she prove her 
assertion by evidence, her right is established ; 
and if she cannot produce any proof, and 
he swear she or her bail then remain re- 
sponsible.' The author of this work says that 
it is the duty of the Kazee, in the present 
instance, to decree maintenance to the absen- 
tee's wife, from necessity. 

.Section /// 

A divorced wife is entitled to maintenance 
during her Edit. WHERE a man divorces 



his wife, her subsistence and lodging are 
incumbent upon him during the term of her 
Edit, whether the divorce be of the reversible 
or irreversible kind. Shafei says that no 
maintenance is due to a woman repudiated by 
irreversible divorce, unless she be pregnant. 
Tne reason for maintenance being due to 
a woman under reversible divorce is that 
the marriage in sucli a case is still held to 
continue in force, especially according to our 
doctors, who tm this pnn:iple maintain that 
it is lawful for a man to have carnal connex- 
ion with a wife s > tepuJiated. With respect 
to a case of irreversible divorce, the argu- 
ments of SUafoi are twofold ; FIRST, Kattima 
Hint Kavs has said, "My husband repudiated 
me by thiec divorces, and the Prophet did 
not appoint to me either a place of residence 
or a subsistence ;" SECONDLY, the matri- 
monial propriety is thereby terminated, and 
the maintenance is held, by Shatei, to be a 
return for such propriety (whence it is that 
a woman's right to maintenance drop* upon 
the death of her husband, as the matrimonial 
propriety is dissolved by that event) ; but 
it would be otherwise if a woman repudiated 
by irreversible divorce be pregnant at the 
time of divorce, as in this case the obligation 
of maintenance appears, in the sacred writ- 
ings, whicn expressly direct it to a woman 
under such a circumstance. The argument 
of our doctors is that maintenance is a return 
for custody (as was before observed), and 
custody still continues, on account of that 
jvhich is the chief end of marriage, namely, 
offspring (as the intent of Edit is to ascertain 
whether the woman be pregnant or not), 
wherefore subsistence is due to her, as well 
as lodging, which last is admitted by all to 
be her right ; thus the case is the same as if 
she were actually pregnant ; moreover, Omar 
has recorded a precept of the Prophet, to the 
effect that "maintenance is due to a WOMAN 
"divorced thrice during her Edit :" theie 
are also a variety of traditions to the same 
purpose. 

No maintenance due to a widow, MAIN- 
TENANCE is not due to a woman after her hus- 
band's deo-ase, because her subsequent con- 
finement [during the term of Edit, in conse- 
quence of that event] is not on account of the 
right of her husband, but of the law, the Edit 
of widowhood being merely a religious obser- 
vance, whence it is that the design of ascer- 
taining the state of her womb is not in this 
instance regarded, and accordingly the Edit 
is not counted by the menstrual terms, but 
by time ; maintenance is moreover due to a 
woman from day to day, and the husband's 
right in his property ceasing upon his decease, 
it is impossible that any maintenance should 
be made due from what is, after that event, 
the property of his heirs. 

Nor to a wife in whom the separation 
originates. WHEN the separation originates 
with the woman, from anything which can be 
imputed to her as a crime, such as apostatizing 
from the faith, or having carnal connexion 
or dalliance with the son of her husband, sh 



146 



DIVORCE. 



[VOL. I. 



has no claim to maintenance during hdit, 
since she has deprived her husband of her 
person unrighteously, in the same manner as 
if she were to go out of his house without 
permission. 

Unless it originate in a circumstance not 
criminal BUT it is otherwise where the 
separation originates with the woman from a 
circumstance which cannot be imputed to her 
as a crime, as in a case of option of puberty 
or manumission, or of a separation demanded 
by her on account of inequality, in all 
which cases she remains entitled to mainte- 
nance during Edit, as she has here legally 
withdrawn herself from her husband, in the 
same manner as where she keeps herself from 
him on account of non-payment of her dower. 

A wife who apostatize has no right to 
maintenance. IF a woman under triplicate 
divorce apostatize from the faith, her main- 
tenance drops ; but if one in the same circum- 
stance admit the son of her husband to carnal 
connexion, still her right to maintenance 
continues because here the divorce has not 
been caused by the apostasy or the incest of 
the woman : but the apostate is imprisoned 
until such time as she may repent ; and a 
husband is not under any obligation to pro- 
vide a maintenance for his wife if she be a 
prisoner whereas a woman who admits the 
son of her husband to carnal connexion is 
not liable to imprisonment on that account ; 
which makes an essential difference between 
the two cases. 

Section IV. 

A father must provide for the maintenance 
of his infant children. THE maintenance of 
infant children rests upon their father ; and 
no person can be his associate or partner in 
furnishing it (in the same manner as no per- 
son is admitted to be associated with a hus- 
band in providing for the maintenance of his 
wife), because the word of GOD, in the Koran, 
says, "THE MAINTENANCE op THE WOMAN 

WHO SUCKLES AN INFANT RESTS UPON HIM 
TO WHOM THE INFANT IS BORN" (that IS 

upon the father), from which it appears that 
the maintenance of an infant child also rests 
upon the father, because, as maintenance is 
decreed to the nurse on account of her sus- 
taining the child with her milk, it follows that 
the same is due to the child himself a fortiori. 

A mother is not required to suckle her 
infant. IF the child be an infant at the 
breast, there is no obligation upon the mother 
to suckle it, because the infant's maintenance 
rests upon the father, and in the same 
manner the hire of a n^rse ; it is possible, 
moreover, that the mother may not be able 
to suckle it, from want of health or other 
sufficient excuse, in which case any con- 
st-aint upon her for that purpose would be 
an act of injustice. 

Except where a nurse cannot be procured. 
^VHAT is here advanced proceeds upon a 
supposition of a nurse being easily procured ; 
but where this is not the case, the mother 
may be constrained to take that office upon 
herself, lest the infant perish. 



The father must provide a nurse. IT is 
the part of a father to hire a woman to suckle 
his infant child, as this is a duty incumbent 
upon him ; and it is necessary that the nurse 
so hired stay with or near the mother, if the 
latter desire it, as the child must be with 
its mother, she having the right of Hizanit. 

But he cannot hire the child's mother in 
that capacity. BUT it is not lawful for the 
father to hire the mother of the child as its 
nurse, if she be his wife, or divorced from 
him ; and in her Edit. because, although 
suckling her child be not incumbent upon a 
mother in point of law, vet it is so in point 
of religion, the word of GOD in the Koian 
saying, "IT BEHOVES MOTHERS TO SUCKLE 
THEIR CHILDREN ;" and a mother is excused 
from this duty only on the supposition of 
incapacity ; but if she agree to oerform it for 
a compensation, this is an acknowledgment 
of her capacity, making the duty incumbent 
upon her without anv consideration what- 
ever. This rule obtains (as above observed) 
where the mother is either actually the wife 
of the father, or reversibly divorced from 
him, and in her Edit, in which case the 
marriage still continues in force ; and (ac- 
cording to one tradition) this also is the rule 
where the mother was in her Edit from 
irreversible divorce ; but another tradition 
says that such a person may be lawfully 
hired by the father as a nurse, because her 
marriage no longer remains in force. The 
argument in favour of the former tradition 
is that the marriage still continues in force 
with respect to some of its obligations, such, 
as the provision of food, lodging, and so forth. 

Yet he may hire any other of his wives 
for that purpose. BUT a father may law- 
fully hire, to suckle his child, one of his 
wives, who is not the child's mother, as 
suckling it is not a duty incumbent upon 
her. 

Or the child* t mother, after the expiration 
of tier Edtt. HE may also lawfully hire 
the mother of the child herself for this office, 
where her Edit frrm divorce has been com- 
pleted, because when that is past the mar- 
riage no longer remains in force in any 
respect, and the woman may then be hired 
as well as any indifferent person In this 
case, however, if the father offer to hire any 
strange woman to suckle his child, and the 
mother offer to perform that office either for 
the same hire, or gratis, the has the prior 
right, as it is to be supposed that she feels 
a venderness for the child beyond any other 
person, wherefore regard for the child dic- 
tates that it should be committed to her 
in preference to any other. But if the 
mother require higher wages than the sti anger, 
the father cannot be compelled to give her a 
preference, as this would be injurious to him. 

Difference of religion makes no difference 
as to the obligations of furnishing mainte- 
nance to a wife or child. THE maintenance 
of an infant child is incumbent upon the 
father, although he be of a different religion : 
end, in the same manner, the maintenance 



BOOK IV. CHAP. XV.] 



DIVORCE. 



147 



of a wife is incumbent upon her husband, 
notwithstanding this circumstance ; the 
first, because the word offspring, in the 
sacred text (as before quoted) is of general 
application, and also because the child is a 
partaker of the father's flesh and blood, and 
consequently is a part of him ; and the 
second; because the o:casion of the obligation 
of maintenance (namely, a valid marriage) 
may exist between a Mussulman and an 
infidel woman. 

The maintenance of children incumbent 
upon the father only where they possess no 
independent property. IT b to be observed 
that what has been asserted respecting the 
maintenance of infant children being incum- 
be/j t upon the father, obtains only where the 
child is not possessed of any property ; but 
where the child is possessed of property, the 
maintenance is provided from that, as it is 
a rule that every person's maintenance must 
be furnished from his own^ substance, whether 
he be an infant or an adult'. 

Section V. 

A man must provide a maintenance for his 
indigent parents. IT is incumbent upon a 
man to provide maintenance for his father, 
mother, grandfathers, and grandmothers if 
they should happen to be in necessitous 
circumstances, although they be of a diffe- 
rent religion : for his father and mother, 
because the text of the Koran, upon this 
point, was revealed respecting the father 
and mother of a Mussulman, who were 
infidels : -and for his grandfathers and 
grandmothers because a grandfather is as 
a father, and a grandmother as a mother ; 
the former bc-ng vested with the authority 
of a father, in all points of guardianship 
and inheritance, in defect of the father, and 
the grandmother being the mother's sub- 
stitute, in defect of her, with respect to 
Hizanit, and so forth : but their poverty is 
made a condition of the obligation, because, 
they be possessed of property, their main- 
tenance must be provided from that, rather 
than from the property of any other person : 
-and difference of religion is no objection, 
with respect to grandparents, because of the 
text above mentioned. 

Difference of religion forbid* the obligation 
to the maintenance of any relations except a 
wife, parents, or children. IT is to be ob- 
served, however, that in the case of difference 
of religion, a man is under no obligation to 
provide maintenance for any except his wife, 
his parents, grandparents, children, and 
grandchildren, to all of whom it is due, 
notwithstanding this circumstance : to the 
wife because (as was already stated) the 
cause of the obligation of maintenance to 
her is custody for the purpose of enjoyment 
under a valid contract, and the establishment 
of this cause does not depend upon unity of 
sect or religion, as it perfectly exists where 
the wife is a Christian (for instance) and her 
husband a Mussulman ; and to the parents 
and others, as enumerated above, because, 



between the child and parent exists a com- 
mon participation of blood, and he who 
participates of another's \>lood is, in fact, 
the same as the participatee himself ; and 
as a man's infidelity is no objection to his 
providing his own maintenance out of his 
own property, it follows that the same cir- 
cumstance can be no objection with respect 
to one who is a part of him. 

And to those also it is not due if they be 
aliens. BUT if those relations be "aliens, 
their maintenance is in no degree incum- 
bent upon a Mussulman, although they be 
Moostamms,* because the lawgiver has for- 
bidden us from showing kindness to those 
with whom we are at war on account of 
religion. 

Christian and Mussulman brothers are not 
obliged to maintain each other. THERE is no 
obligation upon a Christian to provide main- 
tenance to his brother, being a Mussulman ; 
neither is a Mussulman under any obligation 
to provide for the maintenance of his brother, 
being a Christian; because (according to 
what appears in the sacred text) maintnance 
is connected with inheritance ; and as a 
Mussulman and infidel cannot inherit of 
each other, it follows that the maintenance 
of either is not incumbent upon the other : 
it is to be remarked, however, that this rule 
does not obtain with respect to the other 
effects of consanguinity ; for if a Mussulman 
become possessed of his Christian brother, 
as a slave, the latter is virtually emanci- 
pated, on account of nearness of kindred, 
notwithstanding the difference of religion. 

The maintenance of a parent is exclusively 
incumbent on the child. THE maintenance 
of a father and mother is incumbent upon 
their child alone, wherefore no man can be 
his partner or associate in furnishing it to 
them, because parents have a right m the 
property of their child (according to various 
well-known traditions), which they do not 
possess with respect to that of any other 
person ; and also, because the child is more 
nearly related to his parents than to any 
other person whatever. The maintenance to 
parents is equally incumbent upon a daugh- 
ter as upon a son, according to the Zahir- 
Rawayet; and this is approved, because the 
principle upon which the obligation of it is 
founded applies equally to both. 

Maintenance to other re/attons, besides the 
wife, parent*, or children. IT is a man's 
duty to provide maintenance for all his 
infant male relations within the prohibited 
degrees, who are in poverty ; and also to all 
female relation^ within the same degrees, 
whether infants or adults, where they are in 
necessity ; and also to all adult male rela- 
tions, within the same degrees, who are poor, 
and disabled, or blind: but the obligation 
does not extend beyond those relations, 
because the duties of consanguinity are not 



* That is, rpsiding in the Mussulman state 
under a protection. * 



148 



DIVORCE. 



[VOL. I. 



absolutely incumbent towards any, excepting 
the nearer (or Karreebat) degrees of kindred, 
and do not extend to the more distant de- 
grees, as this would be impracticable : on 
this occasion, moreover, the necessity is 
made a condition of the obligation ; and ten- 
derness of sex, or extreme youth, or debility, 
or blindness, are evidences of this necessity, 
since persons from these circumstances are 
rendered incapable of earning their subsis- 
tence by labour ; but this rule does not apply 
to parents, for if they were to labour for a 
subsistence, it would subject them to pain 
and fatigue, from which it is the express 
duty of their child to relieve them ; and 
hence it is that maintenance to parents is 
incumbent upon the child, although they 
should be able to subsist by their ovn in- 
dustry. 

MAINTENANCE is due to a relation within 
the prohibited degrees, in proportion to in- 
heritance ; in other words, upon htm who 
has the greatest right of inheritance in the 
said relation's estate, the largest proportion 
of maintenance is incumbent : and upon 
him who has the smallest right, the smallest 
proportion, and so of the others, because it 
is said in the Koran, "THE MAINTENANCE 

OF A RELATION WITHIN THE PROHIBITED 
DEGREES RESTS UPON HIS HEIR,' and the 

word heir, shows that in adjusting the rate 
of maintenance the proportion of inheritance 
is to be regarded. 

A father and mother must provide a main- 
tenance to their adult daughters (and aho 
to their adult sons who are disabled), in 
proportion to their respective claims of 
inheritance. THE maintenance to an adult 
daughter, or to an adult son who is disabled, 
rests upon the parents in three equal parts, 
two-thirds being furnished by the father, 
and one- third by the mother, because the 
inheritance of a father from the estate of his 
son or daughter is two- thirds, and that of 
a mother one-third. The compiler of the 
Hedaxa remarks that this is the doctrine 
of Khasaf and Hasan. According to the 
Zahir-Rawayet, the who^ of the maintenance 
to these rests upon the father, the word of 
GOD being thus expressed, "THE SUBSIS- 
TENCE OF CHILDREN RESTS UPON THOSE TO 
WHOM THEY ARE BORN" (as was before 
mentioned), and the person to whom thev 
are born is the father, wherefore their 
maintenance rests upon him, in the same 
manner as that of his infant children: but 
the former doctrine proceeds upon the idea 
of there being two points which make an 
essential distinction betweert infant children 
and adults, with respect to the father; 
FIRST, a father is invested with the authority 
of guardianship over his infant child ; 
SECONDLY, the maintenance to his infant 
child is expressly declared to rest solely and 
Bxclusiyely upon him : but with adults it is 
orher vise, as a father has no right of guar- 
dianship over them, wherefore the mother 
^s to assist him in furnishing their main- 
tenance in case of necessity ; and as, in the 



maintenance of other relations, the proportion 
of inheritance is regarded, S3 in the present 
case, in conformity with that rule 

Sisters must furnish maintenance to an 
indigent brother in the same proportion 
THE maintenance of a brother, in poverty, 
rests upon his full paternal and maternal 
sisters, in five shares, according to their 
degree of inheritance ; that is to say, three - 
fifths must bz furnished by the full sisters, 
one-fifth by the paternal sisters, and one- 
fifth by the maternal. It is to be observed, 
however, that to the obligation of furnishing 
maintenance to a poor relation, the capa 
bility of inheritance only is a condition, and 
not the prior or more immediate right : thus 
if a poor man have a rich maternal aunt, 
and also a rich paternal uncle's son his 
maintenance rests ' upon the former in 
preference to the latter, although the latter 
would inherit of him in preference to the 
former, for this reason, that a maternal aunt 
is within the prohibited degrees, whereas a 
cousin-german is not. 

THE miantenance of a relation within the 
prohibited degrees is not incumbent upon 
his heirs, if they be of a different religion 
because in this case, they are incapable of 
inheriting from him, which is the condition 
of the obligation. 

A poor man is not required to support any 
of his relations except his wife or infant 
children. THE maintenance of relations 
within the prohibited degrees is not incum- 
bent upon a person in poverty, because it is 
an obligation (like the other duties of con- 
saguinity) which cannot be fulfilled by one 
who, on account of his situation, has a claim 
to that very assistance from others. But 
this argument does not hold with respect to 
a wife or infant child, for whom it is incum- 
bent upon a man to provide subsistence 
notwithstanding his poverty, because in 
marrying he subjects himself to the expense 
of maintaining his wife, as otherwise the 
ends of marriage would be defeated, and his 
child from participation of blood, is a part 
of himself (as was before observed), for 
whom it is therefore his duty to find support 
as much as for himself. 

Definition of the term rich, as here used. 
ABOO YOOSAF defines the term rich, as 
used in this chapter, to apply to a person 
possessed of property to the amount of a 
single Nisab. Mohammed says that it means 
a person possessed of property above what 
may suffice to support himself and family 
one month : or whose superfluity from his 
daily earnings enables him to afford it, 
because the obligation, in acts of piety, 
depends upon the ability generally, and not 
upon any specific degree of it, Nisab being a 
proportion invented merely for convenience ; 
decrees, however, pass according to the 
former opinion. By the Nisab here men- 
tioned is understood that which is so small 
as to prohibit almsgiving : for instance, two 
hundred DIRMS : and Hawlan Hawl, or 
possession for a year, is not a condition of 



BOOK VI.-CHAP. I.] 



VOWS. 



149 



it : whence, if a man were, from a state of 
poverty, to become possessed of two hundred 
Dirms as this day, the maintenance of his 
poor relations becomes immediately incum- 
beat upon him. 

Maintenance to the parents of an absentee 
may be decreed out of his effects. IF an 
absent son be possessed of property, a main- 
tenance to his parents is to be decreed out of 
it. for the reason already mentioned ; and 
if a father were to sell his absent son's 
effects, for the purpose of providing his 
"maintenance, it is held by Haneefa to be 
lawful, on. a principle of benevolence ; but 
he cannot lawfully sell his lands. The two 
disciples say that the sale of his effects 
is also illegal ; and this is conformable to 
analogy, because a father has no absolute 
authority over his adult son. and therefore 
is not empowered to sell his effects in his 
presence on any pretence, nor to do so in 
his absence, but for the discharge of debts 
which do not include maintenance ; and the 
same reasoning applies to the mother. The 
reason for the more favourable construction, 
as adopted by Haneefa, is that a father is 
authorized to take charge of his absent 
son's effects ; for as the conservation of an 
absentee's property is allowed to devolve 
upon his executor, it must be admitted that 
it appertains to his father in a superior 
degree, as he is more immediately interested ; 
and the sale of moveable property is one 
part of conservation ; wherefore the father 
is at liberty to sell his absent son's moveable 
properly ; but this reasoning does not apply 
to lands, these not being subject to conser- 
vation, as they do not require it ; neither 
does it apply to any other than a parent, as the 
more distant relations are not endowed with 
any absolute authority whatever over an in- 
fant, nor with any power of conservation over 
the effects of an adult. And where ^ a father 
thus sells the property of his absent son, if 
the price he receives for it be of the same 
nature with his right (namely, maintenance), 
he is at liberty to take his right therefrom : 
and in the same manner, if a father dispose 
of the effects or lands of his infant son, he is 
at liberty to take his maintenance out of the 
price, that being of the same nature with 
his right. 

The parents of an absentee may take their 
maintenance out of his effects ; but a trustee 
cannot provide it in that manner without a 
decree. Ir the effects of an absent son be in 
the hands of his parents, and they take their 
maintenance from them, they are not respon- 
sible, as what they take in this manner is 
their right, a maintenance being their due, 
independent of any decree from the Kazee 
but if the effects be in the hands of a 
stranger, and he furnish the maintenance 
to the parents therefrom, without a decree 
from the Kazee, he is responsible, as he in 
that case takes upon him to dispose of the 
property of another without authority, since 
he is no more than merely the absentee's 
agent for conservation (contrary to where he 



acts under the Kazee' s orders, in which case 
he is not responsible, as those are absolute 
and indispensable); and being thus respon- 
sible, he has no right to seek indemnification 
from the parents, because in assuming the 
responsibility, he, in fact, becomes proprietor, 
and then appears to have given the property 
to the parents gratuitously. 

Arrear not due in a decreed maintenance. 
IF the Kazee decree a maintenance to 
children, or to parents, or to relations within 
the prohibited degrees, and some time should 
elapse without their receiving any, their 
right to maintenance ceases, because it is 
due only so far as may suffice, according to 
their necessity (whence it is not so to those 
who are opulent), and they being able to 
suffer a considerable portion of time to pass 
without demanding or receiving it, it is 
evident that they have a sufficiency, and are 
under no necessity of seeking a maintenance 
from others : contrary to where the Kazee 
decrees a maintenance to a wife, and a space 
of time elapses without her receiving any, 
for her right to maintenance does not cease 
on account of her independence, because it is 
her due, whether she be rich or poor. 

Unless where it is decreed to be provided 
upon the absentee's credit WHAT has been 
observed on this occasion applies to cases 
only in which the Kazee has not authorized 
the parties to provide themselves a main- 
tenance upon the absentee's credit : but 
where he has so authorized them, their right 
to maintenance does not cease in consequence 
of a length of time passing without their 
receiving any, because the authority of the 
Kazet> is universal, and hence his order to 
provide a maintenance upon credit is equal 
to that of the absentee himself, wherefore 
the proportion of maintenance for the time 
so elapsed is a debt upon the absentee, and 
does not cease from that ciscumstance. The 
time here meant is any term bevond a month ; 
and if the time elapsed be short of that term, 
maintenance does not cease. 

Section VI. 

Maintenance of slaves incumbent upon 
their owner. THE maintenance of male and 
female slaves is incumbent upon their owner, 
because the Prophet has said concerning 
them "they are your brethren* whom GOD 
has placed in your hands, wherefore give 
them such food as ye yourselves eat, and 
such raiment as ye yourselves are clothed 
with, and afflict 'not the servants of your 
GOD :" if, therefore, the owner do not provide 
their maintenance and they be capable of 
labour, they must be permitted to work for 
their own subsistence, as this is tenderness 
not only to the slaves, but also to his master, 
being equally advantageous to both; since 
the life of the slave is thereby preserved, at 
the same time that the owner's property in 
him continues unaffected. But if the slave 
be incapable of labour (as where a male 
slave, for instance, is deprived of the use of 
his limbs, or where a female is unfit to hire 



150 



on account of extreme youth or tender habit) 
the owner must then be compelled either to 
provide their maintenance, or to sell them, 
because slaves are claimants of right not- 
withstanding their bandage, and by sale 
their right is obtained, at the same time 
that the ower's right is also preserved to 
him by his acquisition of an equivalent in 
the price for which he disposes of them. 
This rule does not hold with respect to other 
living property (such as horpes, and so forth), 
because cattle are not claimants of right, 
and consequently the owner is not compelled 
to an alternative with respect to them, as in 
the case of slaves : but yet men are directed 
to furnish their cattle with subsistence on 
a principle of piety, as the neglect of this is 
cruelty towards the creature, and at the 
same time destructive of property, which is 
forbidden by the Prophet. Aboo Yoosaf is 
of opinion that the owner of cattle may be 
compelled to furnish them a proper and 
sufficient subsistence : but it is the more 
approved doctrine that he is not hab'e to any 
compulsion on that head. 



VOWS. [VOL I. 

Chap. VIL Of Vows in speaking and 
conversing. 

Chap VII (. Of Vows an manumission 
and Divorce. 

Chap. IX. Of Vows in Buying, Selling, 
Marriage &c. 

Chap. X Of Vows respecting Pilgri- 
mage, Fasting, and Prayer 

Chap. XL Of Vows in Clothing and 
Ornaments. 

Chap. XII Of Vows in Striking. Kil- 
ling, and so forth. 

Chap. Xill. Of Vows respecting the 
Payment of Money. 

Chap. XIV. Of Miscellaneous Cases. 



BOOK V. 

OF ITTAK, OR THE MANUMISSION OF 
SLAVES. 

[This book has been omitted, in consequence 
of the abolition of slavery by Act V , of 
1843. so that the learn ng upjn the sub- 
ject has become obsolete, and of no utility 
except to the antiquarian, who can con- 
sult the early Edition.] 



BOOK VI. 

OF EIMAN, OR VOWS. 

Definition of Eiman. EIMAN is the plural 
of Yameen Yameen, in its primitive sense, 
means strength or power ; also the right 
hand : in the language of the law it sig- 
nifies an obligation by means of which the 
resolution of a vower is strengthened in the 
performance or the avoidance of any thing ; 
and the man who swears or vows is termed 
the Haliff, and the thing sworn to or vowed 
the Mahloof-ali-hee. 

Chap. I. Introductory. 

Chap. II. Of what constitutes an Oath 
or Vow, and what does not consti- 
tute it. 

Chap. III. Of Kafara, or Expiation, 

Chap. IV. Of Vows with respect to 
entrance into, or residence in, a par- 
ticular Place. 

Ohap. V. Of Vows respecting various 
Actions, such as going, coming 
riding, and so forth. 

Shap. VI. Of Vows in eating or drink- 
ing. 



CHAPTER I. 

Oath [of a. sinful nature] are the three 
kinds. OATHS are of three different kinds ; 
FIRST, Ghamoos; SECOND, Moonakid (which 
is also termed Makoodat) ; and THIRD, 
Lighoo. 

Perjury A YAMEEN GHAMOOS * signifies 
an oath taken concerning a thing already 
past, in which is conveyed an intentional 
falsehood on the part of the swearer : and 
such an oath is highly tinful ; the Prophet 
having declared ' ' whosoever sweareth 
falsely, the same shall GOD condemn to hell," 

KAFARA. or expiation, is not incumbent 
(that is to say, is of no avail) in a Yameen 
Ghamoos ; but a repentance and deprecation 
of the anger of heaven are incumbent. 
Shafei alleges that expiation is incumbent, 
because that was ordained for the purpose of 
doing away any disrespect sh^wn to the 
name of GOD, which is sinful ; and tms dis- 
respect is evident in a Yameen Ghamoos, as 
it is calling GOD to witness to a falsehood ; a 
Yameen Ghamoos is therefore the same as a 
Yameen^Moonakid ; and as, in that, expia- 
tipn is incumbent, so in this likewise The 
argument of our doctors is that a Yameen 
Ghamoos is a crime of great magnitude (or 
deadly sin), and expiation is an act of piety 
[whence it may be fulfilled by fasting, and 
intention is a condition of it) ; but there 
is no expiation for a deadly sin, and conse- 
quently there is none for a Yameen Ghamoos : 
contrary to the case of a Yameen Moonakid, 
as that falls under the class ofMobah.or 
:hings indifferent. 

OBJECTION. The description of Mobah, or 
ndifferent, applies to things in which there 



* Literally, a false oath, or perjury. It is 
lere proper to observe that the distinctions 
explained in this chapter relate solely to 
such oaths or vows as, being false or broken, 
are sinful, and consequently supposed to 
excite the divine anger, which must be ap- 
peased by expiation : contrary to true oaths, 
or to vows duly fulfilled ; as the former of 
hese are frequently required for the sake of 
ustice, and the latter are permitted, whence 
neither an oath nor vow, simply as such, can 
>e supposed to require expiation. 



BOOK VI. CHAP. II.] 



VOWS 



151 



is no offence : now as a Yameen Moonakid is 
of an offensive nature, how can it be Mobah ? 

REPLY. The offence, in a Yameen Moo- 
nakid, occurs subsequently to the declaration 
of it, and is occasioned by a disrespect shown 
by the vower to the name of GOD, of his 
own free option ; whereas the offence, in a 
Yam en Ghamoos, exists from the first : and 
such being the case, a Yameen Ghamoos is 
not to be confounded with a Yameen Moo- 
nakid. 

Contracted vows (when not fulfilled). A 
YAMEEN MOONAKID* signifies an oath taken 
concerning a matter which is to come. Thus 
a man swears that he will do such a thing, 
or he will not do such a thing ; and where 
the pronouncer fails in this (that is, where 
he does not act according to the obligation 
of his oath)~expjation is incumbent upon 
him : anJ this i? established upon the au- 
thority of the sacred writings. 

And inconsiderate oaths. A YAMEEN 
LiGHOof is an oath taken concerning as in- 
cident or transaction already past, where the 
swearer believes that the matter to which he 
thus bears testimony accords with what he 
swears, and it should happen to be actually 
otherwise : and from the divine mercy it 
may be hoped that the swearer will not be 
condemned for such an oath, since GOD has 
declared, in the Koran, "I WILL NOT CALL 

YOU TO ACCOUNT FOR AN INCONSIDERATE 

OATH." An instance of Yameen Lighoo is 
where a person sees Amroo passing at a 
distance, and supposing him to be Zeyd, 
says, "by GOD that is Zeyd 1" 

Expiation is incumbent, whether the vow 
be wilful or compulsatory, or although the 
oath be taken under a deception of the 
memory. A WILFUL vow, and a compul- 
satory vow, and an oath taken under a de- 
ception of the memory, are all the same, and 
on account of each expiation is incumbent, J 
because the Prophet has said, "there ..are 
three points of serious import, the sporting 
with which is also serious, to wit. MARRIAGE, 
DIVORCE, and a vow." Shafei, controverts 
this doctrine. His arguments will be here- 
after recited at large under the head of 
Ikrah, or compulsatory process. 

The violation of a vow t whether by com- 
pulsion or through forgetfulness t requires ex- 
pulsion. IF a man do a thing which breaks 
his vow, either by compulsion, or through 
forgetfulness, these are both the same, and 
expiation is incumbent upon him in either 
case, because the specified act which is the 
condition of expiation is not made void by 
the circumstances of compulsion or forget- 
f a! ness : and so also, if the thing should be 
done by a maniac or an idiot, because there 
likewise the condition is actually fulfilled. 

OBJECTION. Expiation is not incumbent 



Literally, a contracted oath, or vow. 

tLiterally, a nugatory oath, or (some 
times) a rash oath, 

JThat is, if the thing sworn to be false, 
or the vow be violated. 



but for the purpose of oblitenting a sin 
now no sin can be imputed to maniacs or 
idiots, as such are not made answerable ; it 
would therefore follow that expiation is not 
incumbent upon them. 

REPLY. Although expiation be intended 
for the purpose of expunging sin, yet the 
obligation of in this case rests upon the 
argument of a sin (namely, the breach of a 
vow), and not upon the actual sin itself, so 
that, wherever the breach of a vo v appears, 
expiation is incumbent. 



CHAPTER II. 

OF WHAT CONSTITUTES AN ^ATH OR VOW, 
AND WHAT DOES NOT CONSTITUTE IT. 

An oath may be expressed by using the 
name of God, or any vf his customary at- 
tributes. YAMEEN (that is, an oath or vow) 
is constituted by the use of the name of 
Almighty GOD, or of any of those appella- 
tions by which the Deity is generally known 
and understood, such as Rihrnan and Ri- 
heem.* An oath may also be expressed by 
such attributes of the Deity as are commonly 
used in swearing, such as the power, or the 
glory, or the might of GOD, because an oath 
is usually expressed under one or other of 
those qualities ; and the sense of Yameen, 
namely, strength, is by this means obtained, 
since as the swearer believes in the power, 
glory, might, and othr attributes of the 
Deity, it follows that the mention of these 
attributes only is sufficient to strengthen the 
resolution in the performance of the act 
vowed, or the avoidance thereof. 

Excepting his knowledge, wrath, or mrcy. 
IF a man swear "by the knowledge of 
GOD," it does not constitute an oath, because 
an oath expressed by the knowledge of GOD 
is not in use : moreover, by knowledge is 
frequently implied merely that which is 
known ; and in this sense the word know- 
ledge is not expressive either of the name 
of GOD, or of any of his attributes. In the 
same manner, should a person swear "by 
the wrath of GOD," or "by the mercy of 
GOD," it does not constitute an oath, because 
an oath is not commonly expressed by any of 
these attributes : moreover, by the word 
Rihmat [mercy] is sometimes understood 
rain, and heaven is also occasionally ex- 
pressed by that term ; and by the word 
Ghazb [wrath] is understood punishment ; 
and none of these are either appellations or 
attributes of thepeity. 

Jtis not constituted by using any other 
name , 4 _I F a person swear by any other name 
than that of GOD, such as the Prophet, or 
the holy temple, this does not constitute an 

~*Anglice, the merciful and the beneficent. 
Those attributes are affixed to the name of 
the Deity, at the beginning of the Koran, 
and (in imitation thereof) at the beginning 
of every Mussulman book. 



152 



VOWS 



[VOL. I. 



oath, as the Prophet has said, " if any man 
among ye take an oath, he must swear by 
the name of GOD, or C!M* his oath is void." 
If a person also swear by the Koran, it does 
not constitute an oath, althovgh the Koran 
be the word of GOD, because men do not 
swear by the Koran. The compiler of the 
Hedaya observes that this is where the 
swearer only says "by the Prophet," or "hy 
the temple/' or "by ths Koran ;" but if the 
swearer say, "if I act contrary to what I 
now say, may I be deprived of the Prophet/ 1 
or "of the temple/' or "of (he Koran ;" 
this constitutes an oath, because such priva- 
tion would reduce the swearer to the state 
of an i .fidel, and the smpensir n of infidelity 
upon a condition amounts to Yiimeen. 

Particles of siucarin", - AN oath is con- 
firmed by the use of the particles of swear- ! 
ing ; and these (in the Arabic) arc three, [ 
namely, the letters, waw, and he, and te,* as 
oaths are commonly repeated and under- I 
stood under this form ; and in this sense j 
these particles occur in th Koran. Let it ! 
be also observed that the particles of swear- I 
ing are sometimes understood, thouuh not 
expressed, that is, are omitted in the expres- 
sion, although impl ed in the sense ; and 
this constitutes an oath ; as if a man were 
to say, "Gop, I will n:t do this :" because : 
fin the Arabic] it is common to reject the j 
particle for the sake of brevity : sometimes 
indeed the letter lam is used for the swear- 
ing particle, as it is capable according to 
Mooktarf) of being substituted for be. 

Swearing by the truth of God is not an 
oath. HANEEF A allet.es that if a man should 
swear "by the truth of GOD/' this does not 
constitute an oath, and in this Imam Mo- 
hammed coincides. There are two opinions 
of Aboo Yoosaf recorded of this point : 
according to one it is not an oath ; but 
according to the olher if is an oath, because 
truth is one of the attributes of the Deity, 
signifying the certainty of the divine exist- 
ence, and hence it is the same as if the 
swearer were to say, "by Gon, truth I" 
and as oaths are common under this mode of 
expression, so an orith is here, constituted. 
The argument of Mohammed and Haneefa 
is that the term "the truth/' as here ex- 
pressed, relates merely to the identity of 
the godhead as the object of obedience, and 
hence an oath thus expressed appears to be 
taken by that which is neither an appella- 
tion nor an attribute of GOD. The learned, 
however, say, that if a person express him- 
self thus, "by the truth, \ will do so and 
so," this constitutes an oath, because the 
truth is one of the appellatives or proper 
names of GOD. But, if a person were to say 
"I will do this truly/' it does not amount 
to an oath, because the word truly can only 

Each of these letters, prefixed to the 
name of GOD, is expressive of the English by. 

fA ( celebrated Arabic grammarian and 
rhetorician. 



be taken, in this case, as a corroboration or 
confirmation of the promise contained in the 
speech, being the same as if he were to say 
"I shall do this indeed." 

The expressions "/ swear/' "/ vow " or 
"I testifv," contitute an oath, without the 
name of God. IF a man say, "1 swear," or 
"I vow/' or "testify," whether the words 
"by GDD" be superadded or not, it consti- 
tutes an oath, because such words are com- 
monly used in swearing : the use of them in 
the present tense is undisputed ; and they 
are also sometimes used in the future tense, 
where the context admits of a construcuon. 
in the present ; and attestation amounts to 
an oath, as in that sense it occurs in the 
sacred writings : now swearing by the name 
of GOD is both customary and conformable 
to the divine ordinances, but without the 
name of GOD it is forbidden ; when it so 
occurs, therefore, it must be construed into 
a lawful oath ;* hence, some say, that inten- 
tion is not requisite in it ; others, however, 
allege that the intention is essential, because 
the words here recited bear the construction 
of a promise, that is, they admit of being 
received as applying to the future, and also 
of being taken as a vow without the name of 
GOD. 

IF a person, speaking in the Persian lan- 
guage, were to say, "I swear by Goo," it 
amounts to an oath, because here the idiom 
confines the expression solely to the present ; 
but, if he were to say simply, 'I swe-ai" 
some allege that this clops not < onstuuto 
an oath. If he wore to say, "I swear by the 
divorce of my wife," tlu's is not an oath as 
an oath is not so expressed in practice. 

Swearing by the existence of G ;d makes 
an oath. IF a man, in swearing, say, "by 
the age," or "the existence" (of (Jou), it 
constitutes an oath because the atr> or exis- 
tence of GOD signifies Hs eternity ; which is 
one of His attribute?. [Several] other forms 
of swearing are here recited, but of no con- 
sequen:e, as their validity or nullity depends 
altogether upon certain peculiarities m the 
Arabic idiom.] 

A vow ma\ be contracted by the impre- 
cation of a conditional penalty IF a person 
should sav, "if I do this may I be a Jew/' 
or "a Christian," or "an infidel," it consti- 
tutes an oath ; because, as the sw arer has 
made the condition a sign of infidelity, it 
follows that he is conscious of his obligation 
to avoid the condition ; and this obligation is 
possible, by his making it an oath, in such a 
way as to render urlawful to himself that 
which is lawful. And if the oath relate to 
any thing which he has done in the time 
past, as if he were to say, 'jif I have done so 

That is, the superaddition of the expres- 
sion, "by GOD," must be understood in it, 
so as to make it appear an oath made con- 
formably to the divine ordinance, lest the 
speaker, by swearing in a way that is for- 
bidden, be found guilty of an offence. 



BOOK VI CHAP. III.] 



VOWS 



153 



may I be a Jew/' or "an infidel/' and so 
forth, this is a Yameen Ghamoos, or perjury. 
The swearer is not, however, in this case 
made a Jew or an infidel, because the words, 
"may I be an infidel" (and so forth), relate 
to some future indefinite period. Some, on 
the contrary, have alleged that he becomes 
actually as an infidel,* because the penalty 
which the swearer imprecates upon himself 
relates to the present instant of his testimony, 
being the same as if he were to say, "I am a 
Jew, &c. But the fact is, the swearer does 
not become a Jew or infidel in either of the 
case before us (that is, in that of a vow with 
respect to the future, or an oath regarding 
the past), provided he sonsider this merely 
as a form of swearing : f but if he believe 
that by thus swearing he fully subjects 
himself to the penalty expressed, he suffers 
accordingly, in either' instance, because he 
appears consenting to infidelity, on account 
of having ventured upon a thing by the com- 
mission of which he conceives that he may 
be rendered an infidel. J 

IF a person say , "if I do thus, may the 
anger of GOD fall upon me," this does not 
constitute a vow, as not being a customary 
mode of expression for that purpose. And 
so, also, if a person were to say, "may I 
be an adulterer," or "a drunkard/' or "an 
usurer/' because these are not generally un- 
derstood or received as form, of swearing. 



CHAPTER III. 

OF KAFARA. OR EXPIATION. 

A vow may be expiated by the emancipa- 
tion of a slave; the distribution of alms. THE 
expiation of a vow is effected by the ern,an- 
cipation of a slave ; and the emancipation 
of such a slave as suffices in Zihar, suffices 
also in the case of a vow : or if the swearer 
choose, let him clothe ten paupers, giving to 



*That is, becomes subjected to the penal- 
ties of actual apostasy from the faith. 

t Where no other penalty than that of 
expiation can be incurred. 

I All these cases suppose the thing sworn 
to be false. 

The term Kafara means not only an 
expiatory atonement for the breach of an 
absolute vow, but also the substitution of an 
expiatory act for the penalty imposed by a 
vower upon himself in the case of a vow sus- 
pended upon a condition, by which he had 
designed to restrain himself from the com- 
mission of any particular act; 

Meaning expiation for the breach or 
violation of a vow,-y*>r for any other descrip- 
tion of Yameen which admits of expiation, 
*uch as a Yameen Lighoo, & c. 



each one piece of cloth, or more (the smallest 
quantity to each is as much as is necessary 
in prayer*; or if he please, let him distri- 
bute victuals among ten paupers, the same 
as in the expiation of Zihar All these 
modes of effecting the expiation of a vow arc 
authorized in the Koran, according to the 
words in the text, "THE EXPIATION 

THEREOF MAY BE EFFECTED BY FEEDING 
TEN POOR PERSONS WITH SUCH FOOD AS 11 
USUALLY CONSUMED IN YOUR FAMILIES, OR 
BY CLOTHING TEN POOR PERSONS, OR BY THE 

RELEASE OF A SLAVS It is manifest, there- 
fore, that, in the present instance, one of 
these three modes is indispensable. 

Or fasting. But if the delinquent (from 
his poverty, or other cause) should not be 
able to effect his expiation in any of these 
three modes, he may do it by fasting three 
days successively. Shafei says that he has 
an option ; if he think proper, he may fast 
for three days successively, or for any three 
separate days, because the words of the 
Kormare, "IP HE BE UNABI E TO DO THIS, 

LET HIM FAST FOR THREE DAYS," which CX- 

pression is general The Haneefite doctors, 
in support of their opinion upon this point, 
quote the authority of the reading of Abdoola 
Ibn Massaood, who expounds the text to 
mean three days successively ; and this 
accords with what occurs in the Hadees 
Mashhoor f With respect to what has been 
said of the smallest quantity of cloth suffi- 
cient in expiation it is recorded from Imam 
Mohammed. Hancefa and Aboo Yoosaf 
assert that the smallest quantity of cloth 
proper upon this occassion is as much as may 
be sufficient to clothe nearly the whole body ; 
for a mere Shilwar t is not sufficient ; and 
this is the more authentic doctrine ; because 
one who is only thus clothed is regarded 
as naked. That portion of cloth, however, 
which may not suffice in regard to clothing, 
may be sufficient in eating, according to its 
value : that is, if a person were to bestow, as 
an expiation, such a quantity of cloth as, 
although it may not suffice for the proper 
clothing, yet is equal in value to the feed- 
ing of ten poor men. it suffices as a feeding 
expiation, whether such may have been the 
intention or not. Thus, if the person to 
make expiation were to give to each poor 
person the half of a proper dress (for 
instance), this would not be sufficient for 
an expiation bv clothing ; but if the value of 
the cloth thus distributed to each be equal 
to the price of three pounds of wheat, it 
suffices as an expiation by feeding. 

Previous expiation does not suffice. IF a 
person perform the expiation before the viola- 
tion of his vow, it does not suffice. Shafei 
maintains that it suffices, where the expiation 



Mussulmans must be clothed in prayer 
at least from the waist downwards, 
t A collection of traditions so called * 
\ A species of drawers which are a suffi- 
cient clothing for prayer. 



154 



VOWS. 



[Vox,. L 



is effected by means of property, and not by 
fasting, because the expiator makes his 
atonement posterior to the occasion of it, 
(namely, his vow), and hence the case is the 
same as that of a pilgrim performing expia- 
tion for wounding game,* that is, if the 
pilgrim perform expiation after the act of 
wounding, it suffices ; and so also in the pre- 
sent case. The argument of our doctors is 
that expiation is ordained as an atonement 
for offence : but in t he case before us no 
offence has yet appeared. In reply to what 
is advanced by Shafei, they observe that the 
vow is not the occasion of the offence, as 
nothing can be considered in any degree the 
occasion of an offence, but what nscessarily 
leads thereto, and a vow does not necessarily 
leads to its own violation, but is rather pro- 
hibitory of it ; hence the vow 18 not the cause 
of the offence in the present instance : con- 
trary to the case of the pilgrim, adduced by 
Shafei, in which the wound inflicted upon 
the deer leads to its destruction, by ulti- 
mately occasioning its death ; these therefore 
are not analogous case*. It is to be observed 
that whatever the expiator may have given 
to the poor before the violation of his vow, 
he must not take back again, because this is 
alms, and it is not lawful for a man to take 
back his alms. 

A sin/ul vow must be broken and expiated, 
IF a man bind himself, by a vow, to the 
commission of a sin, as if he^were to swear, 
"by GOD I will not pray," or "I will not 
converse with my father," * "I w *Jl murder 
such an one in such a month," it is incumbent 
upon him to violate his vow, and perform an 
expiation, because it is recorded in the 
traditions that if a man vow a thing, know- 
ing that the neglect is preferable to the 
fulfilment, he ought to act accordingly, 
performing an expiation for the breach of 
his vow. 

The vows of Infidels, being nugatory, can- 
not be held as violated. IF an infidel should 
make a vow, and afterwards violate the 
same, either as an infidel or as a Mussulman, 
(supposing him to have been converted to the 
faith in the interim;, still he is not forsworn, 
because he was not competent to make a 
vow ; as a vow is contracted (that is, is made 
binding) by a reverence for the name of GOD, 
and the vower, whilst he was an infidel, 
cannot be supposed to have entertained any 
reverence for the name of GOD : an infidel, 
moreover, is not competent to the perfor- 
mance of expiation, as that is an act of piety. 
Votus of abstinence. IF a man make cer- 
tain articles unlawful to him, f which are in 
their own nature lawful, ac if he were to 
say, <4 I have made this cloth (or, this provi- 



* Pilgrims arc forbidden to destroy game 
of any kind within a certain distance of 
Mecca, termed the Ihram [forbidden ground] 
of pilgrimage. 

fThis is a phrase by which is understood a 
vow of abstinence from the thing expressed. 



sion) unlawful to me," yet such article does 
not actually become unlawful to him, but he 
must perform expiation when he happens to 
put on that cloth, or to cat that provision. 
Shafei says that expiation is not incumbent 
upon him, because rendering unlawful that 
which is lawful does not amount to a vow, as 
a vow is an act authorized by the law. The 
argument of our doctors is that the words, 
"I have made unlawful," evince the estab- 
lishment of illegality in the thing : now 
there is a possibility of establishing illegality 
in a thing that is really otherwise, by sup- 
posing that the speaker had taken an oath 
that he would not wear the clothes, or eat 
the provisions ; and this supposition is 
adopted, in order to establish the illegality 
declared by the speaker ; and it follows that 
whenever he does that thing which he has 
rendered illegal to himself, he becomes for 
sworn, whether the matter be great or small, 
because when unlawfulness is once estab- 
lished in a thing, the illegality pervades 
every part of it. 

IF a man were to say, 'every thing lawful 
is unlawful to me," every species of food and 
drink forthwith becomes unlawful to him, 
unless where the intention or design of the 
vow has regarded something else. This 
proceeds upon a favourable construction. 
Analogy would suggest that the vower, as 
soon as he has uttered his vow, must become 
forsworn, as being unavoidably and contin- 
ually placed in the performance of some 
lawful act, such as breathing, moving, 
resting, or so forth ; and such is the opinion 
of Zifter upon it ; but the more favourable 
construction is that the design of the vow is 
to establish something, the commission of 
which shall be a crime; and as this cannot 
be effected where the intention, from the 
words of the vow, appears to be general, 
regard to its universality drops, and such 
being the oase, the vow wiil be construed as 
respecting meat and drink, for the sake of 
general application, as it is in practice com- 
monly applied to the articles of customary 
subsistence. A vow of this nature does not 
include the use of women, un'ess by tke 
intention of the vower : but in this case it 
constitutes an Aila, because the form of 
words here recited is a vow, bearing the 
interpretation of "by GOD, I will not have 
carnal connexion with my wife :" and it is 
to be observed that, where the vovver, by 
the words, "every thing lawful," intends 
woman, yet meat and drink are not excluded 
fro*n the vow, but atill remain and are to be 
considered as constituting a part of it. 
What is now advanced is taken from the 
Zahir Rawayet. Our modern doctors have 
said that divorce follows a vow of this form, 
independent of the intention, as the afore- 
said words are frequently used in divorce ; 

* In reciting these forms of vows the 
address ["by GOD," or "I swear" &c f ] is 
for the sake of brevity, omitted ; it is always 
however, to be understood. 



BOOK VI. CHAP, IV,] 



VOWS. 



155 



and there are decrees upon record to this ' 
effect. It is also proper that the same rule 
should hold where the vow is pronounced in 
the Persian tongue, for the sake of general 
application. Let it be observed, however. 
that if a man were to say, " whatsoever ^1 
have in my right hand is unlawful to me," 
there is a difference among casuists concern- 
ing the effect of it ; some doctors say that 
the intention it a condition, whilst others 
maintain that it is not so ; it is evident, 
however, that divorce takes place from it, 
independent of the intention, on account of 
custom. 

A vow is binding without any condition 
annexed. IP a person express a vow in 
general terms, that is, not suspended upon 
a condition as if he were to say, "I shall 
fast upon such a day for the sake of GOD," 
he is bound to the observance thereof, be- 
cause it is said . in the traditions, "whoever 
makes a vow, and specifies it, he is bound ^to 
the obiervance of what he has so specified." 

IF a person suspend a vow on a condition, 
and the condition afterwards occur, he is 
bound to the performance of what he has 
vowed ; and expiation is here of no avail, 
because the tradition above recited is general 
that is, applies to a suspended as well as 
an unsuspended vow ; and also, because a 
vow suspended upon a condition becomes, 
upon the condition taking place, the same 
as one ot immediate performance. It is re- 
corded of Haneefa, that he receded from this 
doctrine, alleging that if a man were to say 
(for instance), "if I do so, I am under ob- 



\1W1 ItiaVCIkiVvC.^ , A& A *-iVV <&\J ) * ! v.w'.. 

ligation to perform a pilgrimage," or "to 
fast a year," or "to bestow all my property 
in alms/' and then perform an expiation for 
his vow, it suffices ; and such is the opinion 
of Mohammed. If, however, the vower 
should not make an expiation, but perform 
the thing which he had specified, he is dis- 
charged from the obligation of that also, 
provided the condition be of such a nature 
as that the vower had no intention it should 
ever take place. The reason of this is that 
whre the condition is of the description 
now mentioned, the speech of the vower, as 
aforesaid, bears the sense of a Yameen, or 
suspended vow; and also of a Nuzr, o 
absolute vow : evidently of a Nuzr, be 
cause such a form of words is commonly 
used to express a Nuzr ; and also of a 
Yameen, because the design of the p?rson, 
in so speaking, is to restrain himself from 
doing the act which constitutes the condi 
tion ; and such being the case, it remains a 
his option either to perform expiation, re 
garding hit words in the light of a Yameen 
or to perform the condition specified, regard 
ing them in the light of a Nuzr : it is other 
wise, however, where the thing conditioned 
is not of the above-mentioned description 
but is actually intended by the speaker. a 
where a man (for instance) says, "if GOD 
grant me a recovery from this illness, I ar 
under an obligation to perform a pugn 
mage," for here expiation doe* not suffice, but 



t is incumbent upon him to perform the 
ctual thing specified, because in this case 
he words do not bear the sense merely of 
Yameen, but also of an absolute vow of per- 
ormance : and this distinction is approved. 

A vow pronounced with a reservation of 
he will of God. ts null. IF a person make 

vow of any thing, adding, "if it please 

uioD,"asifhe were to say, "by GOD I will 

lothis, GOD, willinp," he cannot be forsworn, 

because the Prophet has said, "he who vows 

,ny thing, adding, 'if it please GOD. cannot 

je forsworn/' It is to be observed, however, 

hat it is a condition that the words "Goo 

willing." do follow in immediate connexion 

with the words preceding, because if they be 

Denounced separately, after having Ottered 

he vow, it is a retraction ; and a retracta- 

ion in Yameen is not lawful, 

CHAPTER IV. 

OF VOWS WITH RESPECT TO ENTRANCE INTO, 
OR RESIDENCE IN A PARTICULAR PLACE. 

A vow against entering a house is not vio- 
lated by entering a mosque, church &c.lr 
a person make a vow, that "he will not 
enter any house," and he should afterwards 
enter a mosque, or synagogue ; or church, he 
is not forsworn, because a house is a place 
built for the purpose of dwelling in (that is 
of sleeping, &c.), and buildings of the above 
description are not designed for this purpose: 
the rule is also the same, if the swearer 
should enter a porch or portion before the 
door of a house for the same reason. Some 
have asserted that if the portico be inclosed, 
in such a manner, that when the front door 
is shut, a person may be said to be in the 
house, the swearer by entering such portion 
violates his vow, it being customary tor 
persons to reside and sleep in such a place, 
If the swearer also enter an Iwan* he is tor- 
sworn, because that is designed as an occa- 
sional residence in the hot weather, and is a 
species of dwelling as much as a summer or 
winter residence. Some have conceived that 
this is the case only where the Iwan has four 
walls [that is, where it is a complete quad- 
rangle] : this distinction is made, because 
those buildings in Koofa, and other parts 
of Arabia, are generally so constructed : 
whereas, with us [that is, in Hindostan and 
Persia] they have commonly three walls 
only, being quite open in front, and there- 
fore ar not to be considered as a house, 
Others, however, say that entering a lawn 
is a violation of ftie vow, whether it be con- 
structed of three walls or of four; and this 
is approved. 



An Iwan is an open gallery or balcony, 
on the top of or adjoining to, an house, the 
Sofrf which is generally supported b*. pier, 
or pillars, for the benefit of the air mthe 
hot season. 



156 



VOWS. 



[VOL. I. 



A vow against entering a Serai is not 
violated by entering a ruin. IF a person 
swear that "he will not enter into a place" 
that is, into a Serai, and he afterwards 
enter a place which is desolate and in ruins, 
he is not forsworn : but if a person swear 
that "he will not enter such a place," the 
place being then in a good and habitable 
state, and he should enter it after it had 
fallen to ruin, and been laid level with the 
plain, he is forsworn, because the term Daar, 
among both the Arabs and Persians, means 
any particular place, as with them it is com- 
mon to say, "such a Daar is peopled," or, 
"such a Daar is desolate (that is, aban- 
doned) ;" now an edifice is the description 
of the term Daar, and this description is 
regarded in the first of the above cases, but 
not in the last. 

IF a man take an oath saying, "I will not 
enter into this Daar ;" and the said place 
should afterwards become ruined and deso- 
late, and should again be rebuilt, or repaired, 
and the swearer should after that enter it, he 
is forsworn, a:cording to what was before 
observed, that the appellation Daar still 
continues to be applied to the place, after 
the destiuction of the edifice which stood 
upon it . but if this place, after having 
been ruined and desolate, should be rebuilt 
as a mosque ; bath, or dwelling-house, and 
the swearer should, after that, 'enter it he is 
not forsworn because in any of these cases 
the term Daar is no longer applied to the 
place, as it is then called by another name, 
such as mosque, and so forth : and the same 
rule holds where this person enteri that place 
after the destruction of such mosque, bath, 
or other public building, as may in the 
interim have been erected there, because 
the place will not recover its original name 
after such destruction. 

A yotu against entering Any particular 
house is not broken by entering it when in 
ruins. IF a man swear "he will not enter 
such a dwelling-house," and he should enter 
therein after it has been destroyed or become 
desolate, he is not forsworn ; because the 
term dwelling-house is abrogated, as no 
person then dwells in it ; whereas, if the roof 
only should have fallen in, and the walls 
remain, and he were then to enter it, he 
would be forsworn, because it is still con- 
sidered as habitable, and the place does not 
lose its appellation of a dwelling-house 
[Bait] from that circumstance. In the same 
manner he is not forsworn where, the house 
having been destroyed and laid level with 
the plain, another house is built upon the 
same spot, and he then enters this house 
because the term dwelling-house, as applied 
to the former house, was rendered inappli- 
cable by the circumstance of its ruin. 

A vow against entering a house is not 
violated by going upon the roof, or entering 
the portico, &c. IF a man swear that "he 
will not enter a certain house/' and he after- 
wards go on the top of the house, from the 
outside, he is forworn, because the roof is a 



part of the house. Some have said that, 
with us, he is not forsworn. In the same 
manner, he is forsworn if he enter the por- 
tico only of the house specified in the vow. 
The compiler of the Hedaya observes that 
this case admits of a distinction ; thus, if the 
portico be such as that, if the door be shut, 
it forms a part of the house, and it be covered 
in, he is forsworn, but if otherwise, he is not 
forsworn. If he stand under the arch of the 
doorway he is also forsworn, provided the 
arch be so constructed as that when the door 
is shut it becomes included as a part of the 
house ; but if the arch be so situated as that, 
after shutting the door, it is not included 
as a part of the dwelling, he is not forsworn, 
because the door is designed as a protection 
to the house ; so that whenever the archway 
is not, by shutting the door, included as a 
part of the house, but is without the door, 
it is evident that it is not included in the 
house. 

Case of vows respecting abstinence from a 
thing in which the vower is at present en- 
gaged. IF a man should swear "I will not 
enter into this house," and it should so be that 
he is in the said house at the time of swear- 
ing thus, he is not forsworn by sitting down 
in that house, nor unless he go out of tUe 
house, and again enter it This is upon 
a favourable construction. Analogy would 
suggtst that the vower is forsworn, because 
the effect of the commencement of the act 
and of its continuance is one and the same ; 
and as he would be forsworn by the com- 
mencement of the act, so he is by its con- 
tinuance : but the more favourable construc- 
tion is that, admitting the effect of the 
commencement and the continuance to be 
the same, yet this can only be where the act 
is of such a nature as to be capable of con- 
tinuance, which the entrance into a place 
does not allow, as the word entrance simply 
implies passing from without to within 

IF a person swear that "ta will not put on 
a particular garment," and should happen 
to have the said garm3nt upon him at the 
very time of his so swearing, and should 
forthwith take it off, he is not forsworn. 
And so also a person riding upon a mule [or 
other beast] if he takes an oath, saying, "I 
will not ride upon this animal," and should 
forthwith alight, he is not forsworn. In the 
same manner, a person residing in a house, 
if he swear that "he will not live in this 
house," and thereupon begin to remove out 
of it, he is not forsworn, Ziffer maintains, 
however, that the swearer, in the last of 
these instances, is forsworn, as the circum- 
stance upon which the violation of his vow 
is suspended (namely, his residence in the 
house), does already exist, however short the 
time may be. Our doctors argue that a vow 
is imposed with a view to the fulfilment of it, 
and therefore, that in the present instance, 
such a space of time as admits of the fulfil- 
ment must be excepted from the vow ; and 
hence, if the swearer make any delay he 
is forsworn, because such acts as are here 



BOOK VI. CHAP. V.] 



VOWS. 



157 



mentioned are capable of continuance, as a 
man may, with propriety, say, "I rode a 
whole day," or "I wore such a robe for a 
day :" contrary to the act of entrance : as a 
man could not say, "I entered for a day:'* 
and the possibility of continuance in such 
acts being thus proved, it follows that the 
effect of the commencement and the con- 
tinuance is one and the same : but if the 
swearer should here purely intend the com- 
mencement of the act, and say that his 
design was to vow that "he would not ride 
again" (for instance), his declaration is to 
be credited, as his words admit of that con- 
struction. 

IF a man make a vow, saying, "I will not 
reside in this house," and he should himself 
leave the house, his family and effects still 
remaining in it, although he may have no 
intention of returning to reside there, yet 
he is forsworn, because he is still supposed 
to be an inhabitant of that house, from the 
circumstance of his family and effects con- 
tinuing therein ; as merchants, who reside 
in the Bazaars [that is, have shops there], 
say, notwithstanding, "they reside in such 
a street," meaning the residence of their 
families. 

A vow against residing in a city is not 
broken by the vower' s family continuing 
there. IF a man make a vow, saying, "I 
will not reside in this city," and he go forth 
from it resolving not to return thither, 
although his family should still continue to 
reside there, yet he is not forsworn, and his 
observance of the vow does not depend upon 
his carrying his family and effects out of 
that city according to what is recorded from 
Aboo Yoosaf, because (contrary to the pre- 
ceding case) he is then no longer considered 
as an inhabitant thereof in the customary 
acceptation : and a village is (in the Ra- 
wayet Saheeh) declared to be the same as 
a city, with respect to this rule. 4 Haneefa 
observes, upon the preceding case, that the 
removal of the whole of the effects from the 
house is necessary, insomuch that if even 
a single nail of the vower's property be left 
therein, he is forsworn, because, as his 
residence in that house was understood from 
the whole of his effects being there, so will 
it still be understood whilst any part of them 
remains therein. Aboo Yoosaf alleges that 
the removal of a principal part of them is 
sufficient, because the removal of the whole is 
sometimes impracticable. Mohammed says 
that the removal of such quantity only is 
necessary, as might be sufficient for house- 
keeping, because any thing beyond that is 
not of a residentiary nature ; and the learned 
have agreed that this is the most laudable 
distinction. It is here requisite that the 
swearer remove to another house, without 
delay, in order that he may observe his vow ; 
for if he should not remove into another 
house, but into the street or a mosque, the 
learned in the law say that he does not fulfil 
his vow ; the reason of which is that if a 
person were to remove out of a city with his 



family, so long as he does not fix upon 
another place of abode, his first residence 
remains with respect to prayer :* whence, 
if he return to his former abode, he is still 
accounted an inhabitant ; and the same holds 
good in the present case. 



CHAPTER V. 

OF VOWS RESPECTING VARIOUS ACTIONS ,* 
SUCH AS COMING, GOING, RIDING, AND 
SO FORTH. 

An evasion of a vow is a violation of it : 
If a man swear that he will not go out of 
the mosque, and afterwards desire another 
to carry him forth from it, and the other do 
so, he is forsworn, because an act performed 
by the direction or any person is attributed 
to the director, and it is here, therefore, the 
same as if he had mounted a beast, and rode 
out upon it : but if another person were to 
carry him out of the mosque by compulsion 
he is not forsworn, because the act of a 
person compelling cannot be attributed to 
the person who is forcibly compelled, as he 
gave no direction in it. If, moreover, a 
person should carry out the swearer with his 
will, but without his direction, he is not 
forsworn (according to the Rawayet Saheeh), 
because his removal cannot here be estab- 
lished, as it can only be so by the the circum- 
stance of his directing or desiring it, and not 
by his will alone ; and his desire or direction 
do not appear. 

IF a man swear that he will not go forth 
[from his house] except to a funeral and he 
afterwards go to attend the funeral, and some 
other business should then occur to him, and 
he go upon that business, he is not forsworn, 
because the act of going to the funeral was 
excepted from his vow, and his motions after 
that are not forthgpings, as by going forth is 
understood removing from the inside of a 
house to the outside. 

IF a man swear, saying, ''I will not go 
forth towards Mecca," and he afterwards go 
forth with a design of going to Mecca, and 
return, he is forsworn ; because his going 
forth with a design of going to Mecca (which 
is the condition) is here found, since, by 
going forth is understood removal from the 
inside of the house to without, which has 
here occurred. But if he should have sworn, 
saying, "I will not come to Mecca/' and 
he afterwards go towards Mecca, and return, 
he is not forswore, nor until such time as he 
actually enters Mecca, because coming im- 
plies arriving, and that his not taken place. 
If a man swear also, "that he will not go 



That is, he is supposed to be included in 
the public prayers offered up in the mwques 
for the welfare of that city and its inhabi- 
tants. 



158 



VOWS. 



VOL. F 



towards Mecca/' some lawyers say that the 
case will be the same as this last recited, 
whilst others assert that it corresponds with 
the preceding case ; this last however, is the 
more approved doctrine, because going im- 
plies removal, and arrival is not necessary to 
constitute removal 

An undermined vow of performance is 
not violated until the death of the vower. IF 
a man make a vow that M he will go to 
Mecca/' and he should not go to Mecca during 
his life, he is forsworn : but he will not be 
accounted forsworn until after his death, 
because whilst life remains there is a hope of 
his fulfilling his vow. 

Vows made with vow of prevention. IF 
a man make a vow, saying to his wife, "if 
you go out unless by my permission, you are 
divorced," and he should afterwards once 
grant such permission, and the woman go 
out accordingly, and she should again go 
out without her husband's permission, the 
consequence of his vow is incurred (that is 
the woman becomes divorced), because per- 
mission is requisite each time that she goes 
out, as he excepted from his vow the act of 
her going out with his permission, and any 
other act of going out beyond that is included 
in the inhibition, wherefore the consequence 
is induced by her going forth without his 
permission If the vower explain, saying. 
"I intended one permission only," his decla- 
ration is to be credited in a religious view, 
but not in point of law, because, although 
his words, as above, are capable of this 
construction, yet it is contrary to their ap- 
parent tendency. 

Case of a vow express generally, but 
restricted t in its sense, to some particular 
occasion. Ip a woman be desirous of going 
out, and her husband say, "if you go out, 
you are divorced," and she thereupon sit 
down, and afterwards go out, the conse- 
quence is not induced, that is, divorce does 
not take place : and so also, if a man be 
desirous of btating his slave, and another 
vow, "if you beat him, such an one my 
slave is free/' and the man, desisting only 
for a momentary space, beat his slave, the 
slave of the other person does not become 
free. The reason of this is that the design 
of the speaker in what he vows is to prevent 
that going forth of the woman, or that which 
(according to what then appears) the woman 
or the master is intent upon doing, and of 
course the vow is restricted to that beating, 
or that going forth, as the foundation of the 
vow rests upon what appears at the particular 
crisis. -This species of vow 4 termed Yameen 
Fowr, or a sudden vow . and Haneefa is the 
first who makes any mention of this kind of 
vow : for previously vows were described as 
of two species, one general (as where a man 
says, "1 will not do so") -and the other 
restricted (as where a man says, "I will not 
do so this day") but Haneefa deduced from 
thtse a third, saying, "the third sort is that 
which is general with respect to the words, 
but restricted with respect to the sense. 



IF a man invite another to sit down and 
eat breakfast with him, and the other make 
a vow, saying, "if I eat breakfast my slave 
is free/' an 1 he should then proceed to his 
own house, and there eat his breakfast, he 
does not incur tru penaly of his vow, because 
what he said, as being an answer, relates 
solely to the speech of the other person, and 
is therefore construed as regarding that 
breakfast to which the other had invited 
him. But if the person thus invited were 
to answer, "if I eat breakfast this day my 
slave is free/' upon his breakfasting either 
there or elsewhere at any time during that 
day the penalty is incurred, because here he 
has superadded to his reply the expression 
"this day," and hence what he has said is 
rendered a separate sentence and not a reply. 

IF a man swear that he will not ride upon 
the beast of any other person, and he should 
afterwards ride upon a house, the property 
of one of his slaves, who is a Mazoon, he is 
not forsworn (according to Haneefa), whether 
such Mazoon be involved in debt or not.* 
If the Mazoon, however, should be very 
much involved in debt, the vower is for- 
sworn, although he should not intend it, as 
the master, in such 'case, is not held (by 
Haneefa) to be possessed of any property in 
the animal. If, on the contrary, the debts 
of the Mazoon be of trifl ng consequence 
only, or if he should not be in debt at all, 
the master is not forsworn, where he does 
not intend it, because in either case, he 
is himself the virtual proprietor of the 
animal ; but the animal is held to belong 
to the Mazoon, both in the eye of the law, 
and also by common usage, and hence con- 
cerning his belonging to the master there is 
no doubt ; wherefore his intention in the act 
is requisite. Aboo Yoosaf says that he is 
not forsworn in any of those cases, unless 
he be so jintentionally, because whether the 
animal be the property of the master or not 
is dubious. Mohammad, on the other hand, 
says that he is forsworn, although he be so 
unintentionally, since the animal ip his pro- 
perty, as the two disciples hold that debt is 
in no respect repugnant to a slave being the 
property of his master. 



CHAPTER VI. 

OP VOWS WITH RESPECT TO EATING OR 
DRINKING. 

Vows with respect to eating dates. Ira 
person swear that "he will not eat of such 
a date-tree," his vow relates to the fruit of 
that tree only, because he has referred his 



Because all the effects of his slave are 
virtually his own property, provided the 
slave be not involved in debt. 



BOOK VI. CHAP. VI.] 



VOWS. 



vow to a thing which is not eatable, namely, 
the tree : wherefore his vow is metapho- 
rically taken to regard the article which is 
the product of the tree, namely, the dates ; 
and the subject admits the metaphor, as the 
date-tree is the cause as that article existing. 
But it is a condition that the dates do not 
undergo any change by a new operation ; for 
if he were to drink a Nabbeeza (or infusion) 
prepared from these dates, or juice expressed 
from them, yet he would not be forsworn. 

A vow of abstinence from anything is ngt 
broken by eating that thing when it has ac- 
quired a new description. IF a man swear 
that "he will not eat of those Boosrs" (half- 
ripe dates), and should afterwards eat of 
them when they have become ripe, he is not 
forsworn ; and so also, if he should swear 
that "he will not eat of those Ritbs" (ripe 
dates), "nor drink of this milk," and he 
afterwards eat of these mixed together, after 
the Ritbs shall have become mellow and the 
milk coagulated - t because the description of 
half ride or of ripe is the motive for the 
vow. and those descriptions are no longer 
applicable ; end in the same manner, the 
milk being in the state of milk is the motive 
of the vow, wherefore the vow is taken re- 
specting it in that state ; milk, moreover, is 
ranked among eatables, wherefore by milk 
is not understood anything which may be 
produced from it. It is otherwise where a 
man vows that "he will not converse with 
such an infant," or "with such a youth," 
and he converses with the infant after he 
becomes a man, or with the youth after he 
has become aged, for here he is forsworn ; 
because refraining from converse with a 
Mussulman is forbidden by the law, whether 
such Mussulman be an infant or a youth ; 
hence the descriptions of infancy or adol- 
escence are not regarded, in the eye of the 
law. as motives of the vow ; consequently 
the vowis understood to respect such a per- 
son ; and the vower is accordingly forsworm 
if he converse with that person after he 
arrives at years of maturity. 

Or denomination IF a person swear that 
' he will not eat of such a kid," and he 
should eat thereof after the said kid shall 
have become a goat, he is forsworn, because 
the description of kid, in such an animal, is 
not the m .tive of the vow, since a person 
who avoids eating the flesh of kids, still 
more avoids eating the flesh of goats. 

IF a man make a vow that "he will not 
eat Boosrs (unripe dates), and should after- 
wards eat Ritbs (ripe dates), he will not be 
forsworn, because Ritbs are not Boosrs. 

IF a person make a vow that "he will not 
eat Ritbs or Boosrs," and he should after- 
wards cat Mozennibs (dates which are begin- 
ning to ripen), he is forsworn, according to 
Haneefa. The two disciples say that he is 
not forsworn by eating Boosr-Mozennibs, in 
a case where he may have sworn not to eat 
Kitbs ; neither does he violate his vow by 
eating Ritb- Mozennibs, in a case where he 
has made a vow against eating Booars ; be- 



cause Ritb-Mozennibs are termed Ritbs, and 
Boosr-Mozennibs are termed Boosrs. Thus 
it is the same as if a man were to make a 
vow with respect to buying : that is, if a 
man were to swear that he will not this day 
buy Ritbs (or ripe dates), and he should 
afterwards on that same day purchase 
Mozennibs (or half-ripe dates), he is not 
forsworn ; and so in this case likewise. The 
argument of Haneefa on this point is that 
Ritb-Mozennibs are such as rather incline 
to Boosrs and Boosr-Mozennibs .*re the re- 
verse (that is, such as rather approach to 
Ritbs), wherefore eating either of those is 
eating Boosrs or Ritbs, and the vow regards 
one or other of them : contrary to the case 
of buying, as the buying relates to every 
species, wherefore the inferior species is a 
dependant of the superior. 

IF a man vow that "he will not buy any 
ripe dates/' and he should afterwards pur- 
chase a cluster of unripe dates, among which 
there may chance to be some ripe, he is not 
forsworn , because the purchase relates to 
the whole, and the smaller quantity is u 
dependant of the greater; but, if the vow 
were made with respect to eating, he is for- 
sworn, because the eating of them relates to 
from time to time, wherefore the vow regards 
every one of them. This case is therefore 
the same as if a man were to vow that he 
would not purchase any barley, and he should 
afterwards buy wheat, haying among it some 
grains of barley, in which case he it not ior- 
sworn ; but if he should vow that he would 
not eat any barley, and he should afterwards 
eat wheat, among which are 'some grains of 
barley, he is forsworn, for the reason here 
stated. 

IF a man vow that "he will not eat flesh" 
and he should afterwards eat the flesh of 
fish, he is not forsworn, on a favourable con- 
struction of the law. Analogy would sug- 
gest that he is forsworn, because the meat 
offish is termed flesh, and so it is denomi- 
nated in the Koran ; but the reason for the 
more favourable construction of the law is 
that the meat of fish is only termed flesh 
metaphorically, as flesh it produced from 
blood, and there is no blood in fish, on 
account of their inhabiting the water. If 
the vower, on the contrary, were to eat of 
the flesh of a hog or a man, he would be 
forsworn, because that is actually flesh, 
although the use of it be forbidden, and a 
vow is sometimes made with respect to for- 
bidden things ; and in like manner he is 
forsworn if he were to eat of the liver or 
the paunch of any animal, because that is 
in reality flesh, as being produced from 
blood, and is, moreover, used in the tame 
manner as flesh. Some say that, in our 
times, the vower is not forsworn by eating 
of liver or paunch, at these articlet are not 
among us accounted fleth. 

IF a person swear that "he will not eat or 
buy fat" (that it tallow), he is not forsworn 
by eating or purchating fat, unless it b the 
fat or tallow of the belly. The two dis- 



160 



ciples allege that the swearer would violate 
his vow by purchasing or eating the fat of 
the back, because the peculiar quality of 
tallow, which is melting in the Are, exists 
in this species, as well as in that of the 
belly. The argumsnt of Haneefa is that 
the fat of the back is in reality flesh, as 
being produced from blood ; and it is, more- 
over, used as flesh, and thence the flesh 
derives its value and goodness ; for which 
reason a person eating it would violate his 
vow, where he had sworn not to eat flesh, 
and is not forsworn by selling the fat of the 
back, where he had sworn that ''he w>u!d 
not sell fat." Some allege that this diffe 
rence subsists only where the vower hast 
sworn concerning fat, but not where he has 
sworn concerning tallow, as that is never 
used in the way of fl.:sh 

IF a man makes a vow that "he will neither 
eat nor buy flesh or fat," and he should 
afterwards either eat or purchase the fat 
tail of a sheep, yet he is not forsworn, be- 
cause this part is altogether distinct from 
both flesh and fat, as not being used for the 
same purpose as either of them. 

IF a man swear that "he will not eat of 
this wheat," he does not violate his vow, 
unless he chew it ; and if he should eat 
bread made of the wheat, he is not forsworn, 
according to Haneefa. The two disciples 
maintain that by eating the said bread he is 
forsworn, since by the terms of the vow is 
also understood wheaten bread, according to 
common usage. The argument of Haneefa 
is that, the eating of wneat is a thing actu- 
ally practised, as men eat wheat boiled and 
dressed in other modes, and the literal 
acception must (according to its tenets) 
always be preferred to the metaphorical, 
although that be sanctioned by custom. -If 
the swearer should chew the wheat, the two 
disciples coincide in opinion with our doctors, 
that he is forsworn ; and this is approved, 
since the eating of the wheat comprehends 
the chewing of it, in the common form of 
Metonymy, as where a man vows that he 
will not set his foot in the house of such a 
person, and afterwards enters that house, in 
which case he is forsworn, whether he rides 
into the house, or goes in on foot. 

IF a man make a vow, saying, "I will not 
eat of this flour," and he should afterwards 
eat bread made thereof, he is forsworn : be- 
cause flour is not eaten in its simple state, 
and hence it is construed to mean such 
articles of food as are prepared from it. If, 
on the contrary, he were to eat the actual 
flour, he is not forsworn ; and this is ap- 
proved ; because here it iscertain that the 
words were intended in their metonymical 
sense, and with that sense the eating of 
flour in its simple state does not accord. 

IF a person swear that "he will not eat 
bread," by this is to be understood, such 
bread as is commonly eaten in that place ; 
and l this is, in general, either wheaten or 
barley bread, one or other of which is almost 
universally used. If, also, the swearer 



VOWS. [VOL. I. 

should eat walnut or almond bread in Irak* 
he is not forsworn ; because such bread is 
not common in that region; whereas, if he 
were to eat such bread in Tabristan f. or any 
other place where it is the usual diet, he 
would violate his vow. 

IF a parson swear that "he <vill not eat 
Shawa" (or stew), then the oath relates to 
the flesh of the stew, and not to the vege- 
tables or eggs that may be mixed with it ; 
because the term Shawa means the meat of 
the stew, a^d is therefore to be construed in 
its literal meaning, unless where the swearer 
may have intended by the word Shawa to 
e press and include the above mentioned 
articles also, when the abstinence ought to 
be conform ible to the intention. 

IP a parson sweir that "he will not eat 
Tabbeekh" (or boiled meat), his vow re- 
spects boiled flesh, t Tnis proceeds upon a 
favourable construction of the law, accord- 
ing to general usage ; and the ground of it is, 
that the unrestricted sense of Tabbeekh can- 
not be admitted on account that this would 
preclude the vower from the use both of 
food and of medicine, which is not his 
design. The term Tabbeekh, therefore, is 
here construed to mean the particular 
thing usually understood by it (namely, 
flesh cooked in water;, unless where the 
intention of the vower may have extended 
farther, as if he were to declare that he 
meant thereby every species of boiled pro- 
visions. for here this declaration is to be 
credited, since this is a violence to himself, 
and a man is empowered to inflict penalties 
upon himself. If, moreover, in this case, 
the vower were to sup of the broth of flesh- 
meat he is forsworn, because it partakes of 
the quality of flesh, and broth is also termed 
Tabbeekh, wherefore he would be forsworn, 
"as having eaten Tabbeekh." 

IF a person vow that "he will not eat any 
Ras" [head], by this is to be understood the 
head of an animal, as usually prepared for 
cookery, and exposed to sale. It is written 
in the Jama Sagheer. that if a person swear 
that he will not eat Ras, by this is under- 
stood the heads of cows, bullocks, and goats, 
according to Haneefa ; but that the two 
disciples hold it restricted to the heads of 
goats. This diversity of opinion, however, 
arises solely from the difference of times; 
for in the time of Haneefa the words Ras was 
used to express the heads of both kinds ; but 
in the time of the two disciples, the heads of 



* A division of Persia : the ancient 
Chaldea. 

t A province in upper Persia : the ancient 
Hyrcania. 

I Tabbeekh literally means boiled ; in 
common usage it signifies boiled flesh ; but 
according to its literal meaning, the term 
might equally well be applied to any other 
food. this whole case turns upon the 
express and generally accepted meaning of 
the word. 



BOOK IV. CHAP. VI.] 



VOWS. 



161 



goats only ; and in our times, decrees are 
issued according to whatever may be cus- 
tomary in conformity with general usage, as 
is mentioned in the abridgment of Kadooree. 

IF a person vow that "he will not eat 
Fakiha,"* and he should afterwards eat of 
oranges, citrons, dates, pomegranates, or 
cucumbers, he is not forsworn ; but if he 
should cat apples, melons, or apricots, he 
violates his vow. This is according to 
Haneefa. -This two disciples say, that he is 
also forsworn if he eat oranges, dates, or 
citrons In short, Fakiha is a term used to 
express things introduced as a delicacy be- 
fore or after meals (that is, such things as 
are indulged in as a delicacy over and above 
the common food) ; and it is the same 
whether the fruit of which it is composed 
be dried, or in the natural state, provided it 
be thus indulged in, in both ways (for the 
vower would not be forsworn by eating 
dried melons, which it is not common to use 
as a superfluous delicacy), and this is the 
case with apples, melons, and apricots 
wherefore he would be forsworn by eating 
them : -but it is not the case with cucumbers 
and citrons ; as these are considered merely 
as vegetables in buying and selling, and also 
in eating ; in buying and selling, as they 
are sold by green -sellers ; and in eating, as 
they are, at the time of meals, set along with 
other vegetables ; wherefore the vower is not 
forsworn by eating cucumbers or citrons. 
With respect, however, to oranges, dates, 
and citrons, there is a difference of opinion, 
as above mentioned ; for the two disciples 
maintain that by eating of those the vower 
is forsworn, as the description of Fakiha is 
applicable to them, since they are the most 
rare of all delicacies and a higher treat than 
any other : but he is not forsworn, according 
to Hanecfa, because oranges and dates are 
eaten as food, and men eat citrons also as 
a medicine ; \vherefore the description of 
Fakiha is incomplete, since they ar"e used 
for the support of life ; and hence it is that 
when dried they are used in cookery. 

IF a person vow that "he will not eat 
Idam," by this is to be understood anything 
which is usually eaten in bread ; thus 
Kabobs are not considered as Idam, whereas 
salt is supposed to come under the denomi- 
nation. This is according to Haneefa and 
Aboo Yoosaf : but Imam Mohammed says 
that whatever is most commonly eaten along 
with bread is to be recorded as Idam (and 
there is also an opinion regarded from Aboo 
Yoosaf to this effect), because Idam is 
derived from Mowademit, or congeniality, 
and such articles are usually eaten with 
bread as are agreeable and congenial thereto, 
such as simple flesh, fowls, and so forth, 



Fakiha is said, in the lexicons, to mean 
fruit ; it in reality means any superfluous 
delicacy which does not come, under the 
denomination of food, and this generally 
consists of fruit. 



I The argument of Haneefa httein is that 

I Idam implies that which is eaten as a de- 

| pendant, and dependancy is actually found 

i in a case of admixture where it stands in 

1 the place of bread ; and it virtually exists 

where the article used is of such a nature as 

never to be eaten alone. With respect to what 

Aboo Yoosaf alleges of Idam being derived 

from Mowademit, or congeniality, it may be 

replied that such congeniality is completely 

found in admixture : and vinegar, or other 

similar fluids, are never eaten alone, but 

mixed with br^ad or other food ; and salt, 

also, is not usually eaten alone ; and it, 

moreover, is liable to melt ; wherefore it is 

a dependant (contrary to the case of flesh, 

and other corresponding substances, which 

are frequently eaten alone) : -and hence by 

eating these, the vower is not forsworn, 

unless where he intends such articles in his 

vow, for this is a violence to himself, and a 

man is empowered to inflict penalties upon 

himself. It is to be observed that oranges 

I and dates are not considered as Idam : this 

I is approved. 

i IF a person make a vow that "he will not 
eat Ghadd" [dinner], by this is understood 
i eating at any time from daybreak till noon ; 
j as by Asha [supper], is understood what 
i is eaten between meridian prayer and 
i midnight, because any time after the sun's 
1 daclination from the meridian is the time of 
Asha. Some assert that this was the distinc- 
! tion among the ancients ; but that with the 
! moderns the time of Asha is from afternoon 
j prayer ; and the morning meal is that which 
i may be eateu between midnight and day, 
break, because the morning is from midnight 
until daybreak. It is to be observed that 
where a person makes a vow against eating 
dinner or supper, a full and entire meal is 
to be understood of either, such as is custo- 
mary : this will, of course, be regulated by 
the ir-ual quantity of those meals indifferent 
countries respectively ; but, to violate the 
vow, more than half the usual quantity must 
be eaten, 

IF a man make a vow, saying, "if I clothe 
myself, or eat, or drink, my slave is free," 
and he should explain his intention, in the 
first of these articles, to regard a particular 
kind of cloth only, his declaration is not to 
be credited either with respect to a decree of 
the Kazee, or in a religious view (and the 
same is to be observed with respect to the 
two other articles of eating and drinking) ; 
because intention is not approved unless it 
be expressed, and the cloth, or so forth, are 
not mentionec^ in the vow. If a nan, also, 
were to make a vow, saying, "if I put on a 
robe," or "eat food," or " drink wine, my 
slave is free," and he afterwards say that 
he meant this robe and not that robe, or so 
forth his declaration is not to be credited in 
point of law : but it is credited in a religious 
view, because the words robe, food, and wine, 
are here mentioned ; but yet an inte'ntion of 
discrimination with respect to them contr- 
dicts appearances, wherefore his declaration 



162 



VOWS. 



[Vox-. 1. 



is not to be credited as far as regards a decree 
of the Kazee.* 

Vows respecting drinking out of A fountain 
or vessel. IF a person were to make a vow 
that "he would not drink out of such a 
fountain/' and afterwards lift water out of 
the fountain in a cup, and drink, he is not 
forsworn, nor unless he lift it with his 
mouth [that is, drink it without a vessel], 
in which case he would be forsworn. The 
two disciples say he is forsworn if he drink 
it out of a cup, a* this is the usual mode of 
drinking. Haneefa' s arguments are deduced 
from the Arabic. 

IF a man make a vow, saying, "I will not 
drink of the water of such a fountain," and 
afterwards drink the water of the fountain 
out of a vestel, he is forsworn, because the 
water of the fountain, after being taken up 
and drank, is still referred to the fountain, 
which is the condition ; he is therefore for- 
sworn as much as if he were to drink water 
out of a stream which runs from the foun- 
tain. 

IF a man make a vow, saying, "if I do not 
drink, this day, of the water which is in this 
vessel, my wife is divorced" and it should so 
happen that there is no water in it, he is not 
forsworn ; and so also (according to Haneefa 
and Muhammed) if there be water in the 
vessel, and it should chance to be spilled 
before the night of that day, Aboo Yoosaf 
aayfl that he is forsworn, in either case, 
upon the close of that day ; and the same 
difference of opinion subsists where a man 
makes a vow to Gop (that is, where he says, 
"by GOD I will drink of the water which is 
in this cup this day) ; for it is a rule with 
Aboo Yoosaf that the possibility of fulfill- 
ing the vow is not a condition, either of the 
obligation of the vow, or of its continuance ; 
whereas, according to Haneefa and 
Mohammed, the possibility of fulfilment is a 
condition of the obligation of the vow, and 
also of its continuance, because a vow is 
taken with a view to its accomplishment, 
and it is therefore requisite that the accom- 
plishment be possible and conceivably so as 
to be obligatory. The argument of Aboo 
Yoosaf is , that although the accomplishment 
of the vow be impossible, yet its substitute 
(namely, expiation) is possible, wherefore 
such a vow may be lawfully taken, insomuch 
as it is the occasion of expiation : but to this 
we reply that it is requisite that the original 
act be practicable, so as to render the taking 



*That is, if a man, having made such a 
vow, were afterwards to perform any of the 
acts therein specified, pleading that he made 
his vow under a restrictive intention, and 
that the articles he has eaten or drank, or the 
robe he has put on, were meant as exceptions 
therefrom, the possibility of the truth of this 
declaration is to be admitted ; but yet the 
Kazee (who can judge only from appear- 
ances) must decree the emancipation of the 
slave. 



of the vow valid, since, if the original act be 
practicable, how can the vow be taken so as 
to give occasion for a substitute ? and hence 
it is that a Yameen Ghamoos (or false oath 
made respecting a thing already past) can- 
not be taken in such a manner as to occasion 
expiation. If, moreover, in the case now 
under consideration, the words "this day" 
should not have been mentioned, but the 
vow be general, as if the man had said, "if I 
drink not of the water in this vessel, my wife 
is divorced," and there should happen to be 
no water in the vessel, he is not forsworn, 
according to Haneefa and Mohammed : but 
with Aboo Yoosaf he is forsworn, upon the 
instant. But if there be water in the cup at 
the time of speaking, and it be spilled before 
night, the vower is forsworn, according: to all 
our doctors. Aboo Yoosaf makes a distinc- 
tion between an unrestricted and a restricted 
case ; for he says that, in the restricted case, 
the vower is forsworn after the dav is closed ; 
but, in the unrestricted case, he is forsworn the 
instant he ceases from speaking : the reason 
of which distinction is that, as the specifi- 
cation of a time is made for the purpose of 
extention, the act does not become absolutely 
incumbent until the last instant of the time ; 
and hence the vower is not forsworn until 
then ; but in the unrestricted case, the fulfil- 
ment is incumbent on the instant the person 
ceases from speaking, which, being impos- 
sible, the vower is forsworn on the instant, 
Haneefa and Imam Mohammed also make 
a distinction between the restricted and the 
unrestricted case ; for they say that where 
the vow is genera), and there is water in the 
vessel, and it happens to be spilled, the vower 
is forsworn ; but not where the vow is re- 
stricted ; the reason of which distinction is 
that, in the unrestricted case, the fulfilment 
is incumbent on the instant the person cease 
from speaking ; and the fulfilment being 
defeated, by, the thing no longer remaining, 
respecting which trie vow was taken, the 
vower is forsworn, because the thing vowed 
is in this case defeated subsequently to the 
time when fulfilment was incumbent ; in the 
same manner a5 if the vower should happen 
to die, and the water remain in the cup, in 
which case he would be forsworn : but, 
where the vow is restricted, the accomplish* 
ment is not absolutely incumbent, until the 
last instant of the time specified ; but the 
accomplishment is then impossible, because 
the water, which was the subject of it, no 
longer-remains : and where the accomplish- 
ment is no longer possible, it is not incum- 
bent ; wherefore the vow becomes null, as 
much as if there were no water whatever in 
the vessel. 

A vow made respecting an absolute impos- 
sibility is held as violated upon the instant. 
IF a person make a vow, saying. "I will, by 
some means or other, ascend to heaven," or, 
"I will, somehow, convert this stone into 
gold," this constitutes a vow,* and the vower 



Arab. Yoonakido-al-Yameeno, the vow 



BOOK IV. CHAP. VII.] 



VOWS. 



163 



is forthwith forsworn. Ziffer says that this 
does not constitute a vow, since ascending to 
heaven, or turning stone into gold, are im- 
practicable, in the usual nature of things, 
and therefore are the same as things actually 
impossible. The argument of our doctors is. 
that the fulfilment is here actually prac- 
ticable, because it certainly is possible to 
ascend to heaven, as we know that the angels 
of Goo ascend the skies ; and in the same 
manner it is possible that a stone may be 
converted into gold by the Almighty exerting 
his power for that purpose : now the thing 
vowed being possible, the vow is contracted 
so far as to give occasion for expiation ; and 
the yower is forthwith forsworn, because of 
his inability, in the ordinary nature of things, 
to execute the thing which he has under- 
taken ; in the same manner as if a vower 
were to die before the accomplishment of his 
vow, in which case he would be forsworn, 
although it be possible that he may yet 
be restored to life : contrary to the case 
of the vessel of water, because the drinking 
of the water undertaken to be drank is not 
possible in. either of those cases, and there- 
fore the vow is null. 



CHAPTER VII, 

OF VOWS WITH RESPECT TO SPEAKING AND 
CONVERSING. 

A vow against speaking to such a person 
is violated by speaking to him within hearing 
distance, although he be asleep. IP a person 
make a vow, saying, "I will not speak to 
such an one/' and he should afterwards 
speak to that person while asleep, from 
such a distance as may be within his hearing, 
he is forsworn ; because he has spoken to 
that person, and the words have reached 
his ears ; although, in consequence of being 
asleep, he may not have heard them, and it 
is therefore the same as if he had called to 
that person from a place within his hearing, 
and thd person be not sensible of his address- 
ing him through inattention. In some pas- 
sages of the Mabsoot it is said that it 
is conditional to the violation of the vow 
that the person sleeping be awaked by the 
words spoken (and in this opinion our 
doctors coincide) : because, if he be not 
awakened, it is the same as if the speaker 
had called to him from a place so distant as 
not to be within hearing, in which case he 
would not be forsworn, and so here likewise. 

Case in which the violation of the vow de- 
pends upon the meaning of the terms used in 
it. !F a man make a vow that, "he will 



is contracted ; that is to say, is valid in its 
effect, and binding upon the vower. The 
expression, as above, is preferred by the 
translator, as being more familiar to an 
English reader. 



not speak to such an one without his per- 
mission," and the person mentioned should 
permit him to speak accordingly, but the 
vower be not certified thereof until after he 
shall have spoken to him, he is forsworn ; 
because the term Izn [permission] is deyied 
from the word Azan, which signifies indica- 
tion ; or if it signifies a thing received by the 
ears, which can only be done by hearing, 
Aboo Yoosaf says that he is not forsworn, 
because Izn signifies licence, which is fully 
understood by tacit consent alone ; that is 
(like the will), it does not depend upon any- 
thing else : for instance, if one were to swear 
that "he would not speak to such a person 
without his will," and the person should 
will his speaking to him, but the vower be 
not certified thereof until after he has spoken, 
yet he is not forsworn, because the will is 
fully established by the person being merely 
willing, and does not depend upon anything 
else. But to this we reply that the will is 
merely an act of the mind, whereas Izn is 
not merely so, for the reasons above stated. 

Case of a vow against conversing with a 
person for a specified time IF a person 
make a vow, saying, "1 will not speak to 
such an one for a month," it is to be under- 
stood from the time of making such vow, 
because if he were not to mention the words 
for a month, the vow would take place as a 
perpetual relinquishment of converse with 
the person mentioned ; the mention of a 
month, therefore, is for the purpose of ex- 
cluding from the vow anything beyond one 
month, and hence that which is connected 
with the vow must be included in the vow, 
from the argument of the state in which it is 
pronounced, as being a state of anger, since 
the reason for the observance of the vow is 
the anger which occurs to the vower at the 
instant, for which reason converse with the 
person mentioned is prevented from that 
instant. It would be otherwise if a man 
should say, "by GOD I will fa^t for a month," 
because, if the words "for a month," were 
not mentioned, yet the vow would not take 
place as inducing a perpetual fast ; the 
mention of a month, therefore, is merely for 
the purpose of restricting the fast to a month; 
and as the month is indefinite, and not speci- 
fied, the specification of it is left to the vower. 

Repetition of prayer, &c. t at the stated 
seasons, does not violate a vow of silence. 
IF a man make a vow that "he will not 
speak," and he afterwards read the Koran 
at the stated periods of devotion, he is not 
forsworn ; but if he should, at any other 
time, read the Kq/an, he is forsworn. The 
same rule also holds with respect to the 
Tasbeeh,* Tahleel f and Takbeer ,t that is 



^Calling upon the name of GOD in prayei 
by saying, "BEESM ALLAH I in the name of 
GOD." 

fRepeating the Kalma, or creed, "TKERB 
is NO GOD BUT GOD, &c." * 

{Magnifying GOD (in prayer) by swing 
"ALLAHOO AKBERO 1 [Goo is greatest 



164 



VOWS. 



[VOL. 



to say, he repeat any of these at the 
stated time of prayer, he is not forsworn ; 
but if he should repeat them at any other 
time, he violates his vow. This proceeds 
upon a favourable construction. Analogy 
would suggest that the vower is forsworn 
in either case (and such is the opinion of 
Shafei), because reading the Koran, or re- 
peating the Tasbeeh, and s;> forth, are all 
actual exertions of the speaking faculty. 
The argument of our doctors is that prayer 
does not come under the description of 
speech, either generally, or in the constrvic- 
tion of the law the Prophet having said, 
"these prayers which I teach are not capa- 
ble of being construed as containing any 
of the words of men.' 1 Some have said 
that in our days the vower would not be 
forsworn, even at any other time than the 
stated periods of prayer, because the person 
who repeats those things is not said to be 
speaking, but reciting ; and decrees pass 
accordingly. 

A vow made respecting the day extend* to 
the night a/so. IF a man were to say, ' on 
the day [Yawm] upon which I speak to such 
an one, his wife is divorced,"* this extends j 
both to the day and the night, because the 
word day where it comes in context with a 
thing which is not a matter of continuance, 
means time generally ; and as speaking to 
a person is not a matter of continuance, by 
the word day, is to be here understood time 
in general. But if the swearer should 
declare that his intention in the vow was 
confined to the daytime in particular, his 
declaration must be credited with the Kazee, 
because the term Yawm is used also in this 
sense. It is recorded from Aboo Yoosaf 
that his declaration not to be credited 
with the Kazee as it is contradictory to 
general usage. But if the vower should, 
in the place of the word day, use the word 
night, by saying, "on the night [Lail] on 
which I converse" (and so forth, by this 
is to be understood night only, because the