A man cannot
contract his
Am - Walid,
(being preg-
nant), to another
:
but he may
fo contrail
his enjoyed
female ilave.
the time of her capture, becaufe the parentage of her Foetus is afcer-
tained * .
If a man contrat his Am-Walld, who is'pregnant by him, to-
another man, it is_null, becaufe the Am-Walid is accounted as 'the
F'trâjh of her mafter, or partner o f his bed, infomuch that the parentage
of her child is eftablkhed by the law in him, independant of any
formal claim or acknowledgment thereof on his part; wherefore, if
the marriage were valid, it would induce the exiftence of a right to
cohabitation in two individuals with one and the lame woman, a right
which is null, as it would occalion a doubtful parentage.
O b j e c t i o n .— The Am-Walid being declared the Firafh of her
mafter, it would appear that his marriage of her to another would not
be legal, although {he. were not pregnant.
R e p l y .— The Firafh right of a mafter in .his Am-Walid is o f but
weak confideratiom; whence it is, that if he were to deny her child’s
defcent from him, it would become baftardized on the inftant, without.
any alTeveration. His-Fira/hright in her, therefore,, not* being of
any account, independent of pregnancy, is not prohibitory to her
marriage, unlefs as connected with that circumftance.
I f a man have carnal connexion with his female Have, and'afterwards,
contraft her in marriage to another man, it is lawful;, becaufe
an abfolute {lave is not accounted’as a Firafh, or partner of her mafter’s
bed, fince, if fhe were to produce a child, the parentage would not be
eftabliftied in him unlefs he were to claim it.— But yet it is advifeable
that the mafter, previous to contracting, her to another perfon, fuffer
one term of her courfes to elapfe, fo as to guard againft the poffibility
of his feed mixing with that of the other.— It is to be remarked, in
this place, that the marriage of the {lave, under the circumftance now
mentioned, being valid, it is lawful for her hufband to have carnal
* A s nQceflariiy proceeding from fome one o f the e n em y .
coiinexion
connexion with her immediately, and before her purification from her
firft fucceeding courfes, according to Haneefa and Aboo Yoofaf—
Mohammed alledges, however, that it will be laudable in the hulband
to abftain from carnal connexion with her until one complete term of
her courfes {hall have elapfed, becaufe it is'poflible that there may
remain in her womb feed of her mafter,— wherefore it is requifite
that it be purified of that feed, the fame as in a cafe of the purchafe of
a female {lave.— T h e argument of the two Elders, in this cafe, is
that the inftitute of the law, legalizing her marriage, is in itfelf a
proof that her womb is unoccupied, as the law does not admit any
marriage to be legal but under that fuppofition ; wherefore purification,
in the prefent inftance, is not made a rule, either laudable or
-injuntdive: contrary to a cafe of purchafe, that of a female {lave being
held lawful although {he be. pregnant.
I f a man marry a woman, knowing her to have been guilty of
-whoredom, he may lawfully have-carnal connexion with her immediately,
before her purification from her courfes, according to the two
Elders: but Mohammed deems it laudable'that he have no-fuch connexion
with her until after her purification.— The reafoning-of each upon this
point is to the {ame effeft as-in the preceding cafe.
A N i k k a h M a ' t A t , or ufufrutluary marriage, where a man fays An u f u fm a « -
to a woman “ I will take the ufe o f you for fuch a time for fo
“ much,” is void, all the companions having agreed in the illegality
of it.— It is related in the Nakl Saheeh, 'that Ibn Abbas retraced from
uis firft opinion and embraced that of the other companions:— for Ibn
Abbas was firft of opinion that the ufufrubl here mentioned is allowable;
but Alee informed him that the prophet had declared it unlawful,
upon which he retrained from his opinion of ufifruhl being
allowable:— and Ibn Abbas having thus retraced, a ll,the companions
appear to have agreed concerning its-illegality.
N 2 A N i k k a h