and fo alfo a
temporary
marriage.
Cafe o f a
double marriage
by one
contraä.
A N i k k a h M o w o k k e t , or -temporary marriage,— where a man
marries a woman, under an engagement of ten days (for inftance) in
the prefence of two witne fles -,is null.— differ afferts that fuch marriage
is valid and binding, the condition exprefl’ed of a fpecified period
for its continuance being of no effeâ ; becaufe a marriage is not to be
held null on account of a null or illegal condition therein expreflfed.—
T h e argument of our doctors is that a temporary marriage is of the
fame nature with a ufufrudluary marriage ; and in all contrafts regard
is had to the fenfe rather than to the letter, wherefore a temporary
"marriage is null as well as .a ufufrucluary marriage, whether the period
fpecified be fhort or long ; becaufe the principle on which a contradE
of marriage falls under the defcription of Matât, or ufufruBuary, is its
containing a fpecification of time; and the fame is found in a Nikkah
Mowokket, or temporary marriage.
If a man marry two women, by one -contradE, 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', becaufe in
that only a caufe of nullity is found: contrary to where a man puts
together a freeman and a {lave, and fells them by one agreement, -as
fuch fale is null with refpedt to both, becaufe fale is rendered null by
an invalid condition, and the confent to the contract of fale is required
with refpedt to the free perfon, in order to the legality of it with
refpedt to the fiave ; this is therefore an invalid condition, as fhall be
demonftrated in treating o f Jlaves.— It is to be obferved that the whole
of the ftipulated dower, in the cafe now recited,, goes to her with
refpedt to whom the marriage is lawful, according to Haneefa— With
the two difciples, on the contrary, the dower is divided into the
proper dower to each*, and therefore fhe with refpedE to whom the
marriage is legal receives the amount of her proper dower, and the
* That is to fay, a dower fuitable or proportioned to the rank and circumftance of
each refpectively,
remainder
remainder drops in favour o f the hufband; and the fame is recorded in
the.Mabfoot.
If a woman fue a man on a plea of marriage, declaring that fuch
an on e had married herr and produce evidence in proof o f her affirmation,
and the Kazee accordingly declare her to be the wife of fuch a
man, and it fhould fo happen that the man had never been aflually
married, to that woman, yet he may, after this, lawfully refide with
her;— and this is a fign of the authority of a judicial decree (or order
of the Kd&ee) in regard to appearance: and if the woman defire carnal
connexion, the man may lawfully hold fuch connexion with her;—
and this, is a fign of the authority of a judicial decree, in reality.— The
authority of the -judicial decree extending both to appearance and re-
ality is a tenet of Haneefa; and is alfo found in a prior opinion o f HboO
Yoofaf.— In a more recent opinion- of Hboo 2 oofaf, and- with Mohammed
and Shafei, it is hot lawful for the man to have carnal connexion with
this woman, becaufe the Kazee has erred in his proof, as the witnefles
bore falfe teftimony, and an error in the proof deftroyS the authority
of the decree in' regard to reality', wherefore it is, in feme mcafure,
the fame as if the witnefles were Jlaves or infidels, in which cafe the
decree would have no authority either in appearance or reality, and fo
it would appear in the prefent inftance likewife; but here the decree
.has authority in regard to appearance, on account that the witnefles
gave a true teftimony in appearance, yet it has no authority in reality,
as their teftimony is falfe in point o f fa c t ; whereas, where the wit-
neffes are Jlaves or infidels, the decree ! deftitute of authority in appearance
alfo,‘Jas the proof, remains uneftablifhed even in appearance,
fince the difeovery of their being Jlaves or infidels is practicable.— The
.argument of Haneefa is that the witnefles are held, with the Kazee, to.
bear true teftimony, and this is proof, as it is impoflible to afeertain
whether their teftimony be ahually true: contrary to the Jldte o f
bondage, or the infidelity of withefles, as thefe are circumftances eafily
known and afeertained, wherefore their evidence is not proof in any
4 way-
Cafe o f marriage
by a
judicial decree*