her modefty i f fhe were to perform this herfelf; for all which reafons
a woman contradting herfelf in marriage is valid, independent of her
guardian, although it fho,uld be an unequal match; but yet, in the
latter cafe, the guardian is at liberty to diflolve the marriage.—-It is
match If* reC0I'ded as an opinion of Haneefa and Aboo Yoofaf, that the marriage
unequal. is illegal if there be an inequality between the parties.— It is alfo re.
corded that Mohammed afterwards adopted the fentiments of the two
elders upon this point, and agreed with them, that the marriage
here treated of is lawful, and that its validity is not fufpended upon
■ the approbation of the guardian.
An adult I t is not lawful for a guardian to force into marriage an adult
be married virgin agamlt her conlent.— This is contrary to the doctrine of Sbafei,
agunither who accounts an adult virgin the fame as an infant, with refpedt til
marriage, fince the former'cannot be acquainted with the nature of
marriage any more than the latter, as being equally uninformed with
refpedt to the matrimonial ftate, whence it is that the father of fuch
an one is empowered to make feizin of her dower without her con-
fent.— The argument of our doctors is that the woman, in this cafe,
is fr e e , and a Mokdtib, (that is, fubjedt to all the obligatory obfer-
vances of the law, fuch as fa jlin g , prayer, and fo forth,) wherefore
no perfon is endowed with any abfolute authority of guardianfhip over
h e r: contrary to the cafe of infants, over whom others are neceflarily
endowed with this authority, the underftanding of fuch being de-
fedtive, whereas that of an adult is held complete, in confequence of
her having attained to years of difcretion ; for, if it were otherwife,
fhe would not be fubjedt to the obfervances of the law : from all which
it follows that this woman is the fame as an adult fon; and that all her
.adts with refpedt to matrimony are good and valid, the fame as his
with refpedt to property; neither is her father empowered to make
. feizin of her dower without her content exprefl'ed or virtually understood,
as he is not at liberty to do fo where fhe has forbidden him.
W henever
W henever a guardian, being the perfon empowered to engage
in the contradt, requires the confent of an adult virgin to a marriage, a •virgin.
if file fmile or remain filent, this is a compliance; becaufe the prophet
has faid “ A virgin muß be cohfulted in every thing which regards
“ herfelf; and i f Jhe be fle n t it ßgnifies affent;” and alfo, becaufe her
aflent is rather to be fuppofed, as fhe is afhamed to teflify her defire;
and laughter is a füll more certain token of aflent than filence: contrary
to weepings as this manifefls abhorrence, fince tears are moil
commonly the effedt of grief, and not of joy, which is rarely the oc-
cafion of them, and therefore not to be regarded.— Some have faid
that if her laughter be in the manner of jeft or derifion it is not a compliance;
nor is her weeping a difapproval, if it be not accompanied
with noife or lamentation.
But if a marriage be propofed to an adult virgin by any other than
her guardians, or by a Walee Bayeed, (or guardian of a more diftant
degree than her father, brother, or uncle,) her filence or laughter are
-not fufficient, until fhe fliall from her lips pronounce an explicit compliance,
becaufe here her filence might be conftrued to arife from fhy-
nefs towards fuch a perfon as being a ftranger, andinot from her confent
to the match ; and if it were even to be confidered as a token of
approbation, yet, under fuch a circumftance, it muft be regarded as
doubtful : but this is not the cafe if the perfon who propofes the
marriage be adting merely as a meffenger from her parent, or other
immediate guardian; becaufe.to fuch an one the farne figns of aflent
or diflênt fuffice as were fpecified in the preceding oafe.— It is here to
be obferved that, in requiring the woman’ s confent as aforefaid, it is
requifite that the hufband propofed to her be particularly named and
defcribed, fo as to enable her to form fome idea of him, whereby to
afcertain her liking or diflike; but it is unneceflary to name or fpecify
the dower; and this is approved, becaufe marriage may.be effedted
independent of any dower, as that is not eflential to it.
v o n . I.
Mill
o I f