Tokens o f
co.ifent from
a Siyeeba.
Cafes under
which a woman
is Hill
confidered as
fk virgin, 1 n
I f a man contrail an adult virgin in marriage to another without
her knowledge, upon her receiving intelligence of it the fame tokens
fuffice, to fignifyher compliance or approval, as were fpecified in the
former cafe; that is to fay, if Ihe laugh or remain lilent fhe confents,
or i f Ihe weep (he difapproves, provided the perfon contracling on her
behalf be her guardian, and as fuch empowered fo to contrail; but if
the contrail be entered into by any other than her guardian, her con-
fent is not underftood until Ihe fhall have expreffed the fame in terms;
and in this, as in the preceding cafe, the naming and defcribing of the
hufband to her is a requifite condition, but not the fpecification o f the
dower.— It is to be here obferved that, if the perfon who-conveysthe
intelligence to her be a Fazoolee, (that is, one who is neither an agent
nor guardian,') number or integrity are conditions eflential to the elicit;
that is to fay, the information mull be conveyed to her by two per-
fons, or at leaft by one perfon of known good repute, according to
Haneefa: but if the informer be • a&ing merely as • ?>, m fjeiig er - from
the guardian, then neither number nor integrity, are conditions, according
to all the doctors. There, are many cafes fimilar to this-with
refpedl to the point at prefent in queftion, fuch as the recall of an
ambaffador, and the revocation of the privileges of a Md%oon.
If a guardian prbpofe a marriage to a Siyeeba, (or woman with
whom a. man has had carnal-connexion,) it is neceflary that her compliance
be particularly expreffed by words, fuch as, 64 I confent to it,
becaufe the prophet-has-faid “ Siyeebas are to-be confuted,,v and alto
becaufe a Siyeeba, having had connexion with man, has not the fame
pretence to filenee or ffiynefs-as a virgin, and confequently the filent
lio-ns before intimated are not fufficient indications of her afifent to the
propofed alliance.
If the figns of virginity in a girl Ihould happen to be effaced, either
by leaping or any other exertion, or by a wound,, or by frequent repetitions
®f the menfes, yet Ihe is ftill to be confidered as a virgin;
5 that
that is to fay, her filenee is a fufficient fign of her acquiefcence in a
marriage propofed, becaufe ffie is ftill in reality a virgin, the law accounting
every woman fuch who has not had carnal connexion with
the other fex,— and confequently fubjedl to the fame Ihynefs and re-
ferve, from her not being accuftomed to male fociety.— And if the
fi°ns o f virginity be effaced eyen by fornication, -yet ffie here alfo
Hands as a virgin, according to Haneefa. Aboo Toofaf, Mohammed,
and Shafei, are of opinion that the filenee of fuch an one is not a fufficient
token of confent to a marriage propofed, becaufe ffie is adlually
a Siyeeba, fince ffie has actually had connexion with man.— Haneefa
in this c a fe , argues that people in general ftill fuppofe her to be a
virgin, and hence confider her fpeaking as a breach of decorum, and
confequently' ffie will refrain from fpeech; her filenee, therefore,
muft be held fufficient, left her delicacy be violated ; .contrary to a cafe
where a woman hasftoft her virginity .either in an erroneous or an invalid
marriage, as fuch an one would not be held a virgin with refpedl
to the point in queftion, the law having rpanifefted her carnal connexion,
by inftituting, -in her-cafe, obfer vances .which are a confe-
quenceiof it, (fuch as Edit and Dower,) and by eftabliffiing the parentage
of her child, whereas it recommends, as laudable, the .concealment
of fornication : this, however, is only where the cafe is not of a very
notorious nature; for jf a woman be- known to abandon herfelf to
fornication publicly, her, -filenee would not be deemed fufficient.
If a man Ihould fay toa-woman l( You have heard of your being
“ contradled-to me by our friends, and remained filent;” and ffie
reply, “ No, I refufedyou,” or “ I diffented,” her declaration is-to
be credited.— Ziffer fays that the declaration of the huftand is to be
credited, on account that filenee is the original fiate of man, wherefore
the perfon who adheres to that is the defendant; and the repulfion of
the .marriage.is fupervenietit, wherefore the perfon who adheres to-that
is the plaintiff-, the cafe is therefore the fame as where a perfon enters
into a contrail, of fale under a condition of option, and pleads a rejec-
O 2 tion
refpeft to the*
tokens o f
confent.
Cafe o f allegation,
and
denial.