and abfolute authority cannot be eftablifhed where there is any defed.
T h e argument of Shafei, in fupport. of his, fecond propofition, (to
wit, “ that this privilege does not appertain to any guardian whatever
■“ .with refpedt to an-infant Siyeeba, although he be her father pr
-grandfather,” ) is, that her becoming a Siyeeba is to be confidered as
-endowing her with fuffjcient underftanding and capacity to aft and
judge for herfelf, oh account of her being thus accuftomed to male
fociety, wherefore the law operates upon this confideration, without
any-regard to the abfolute fadt of her being endowed with fuch a portion
of underftanding or not, as that is a matter which does not
readily admit of afcertainment. T o this our dodtors reply, that,the
infant requires a guardian whofe tendernefs and affedtion muft be ne-
ceflarily admitted; neither can her acquaintance with the other fix
be confidered as endowing her with any .additional portion of under-
•■ ftandi ng in regard to mankind, without concupifoence, which, .in a
child, does not exift.— It may alfo be further obferved that the precept
of the prophet already quoted is general and indifcriminate, and
.therefore includes all relations .equally; which makes it a Cufficient
.anfwer to Malik and Shafej.
R e l a t io n s ftand in the fame order in point of authority to.con-
: tradt minors1 in marriage as they do in point of inheritance.; but this
.authority, in the more diftant relatives, is Jup.erceded by the cxiftencc
;o f thofe of a nearer degree:
Cafe iit
.which the
marriage of
infants continues
binding
after
puberty.
If the marriage of infants be contracted by the fathers or grandfathers,
no option after puberty remains to them; becaufe the determination
of parents in this matter cannot be fufpecied to originate ill
finifter motives, as their affedtion for their offspring is undoubted1;
wherefore the marriage is binding upon the parties, the fame,as if they
had themfelves entered into it after maturity.
But
But if the contradt ftiould have been executed by the authority of
others than their parents, each is relpedtively at liberty, after they
become of age, to chufe whether the marriage fhall be confirmed or
annulled.— This is according to Haneefa and Mohammed. Aloo Toofaf
maintains that, in this cafe alfo, no option remains to them, fince he
confiders all guardians to be the fame as parents., T o this Haneefa
and Mohammed reply, that the more diftant the guardians'ftand in
their affinity to the parties, the lefs warm are their affedtions fuppofed.
to be; whence^ it is to be apprehended that, in contradting the marriage,
felf iritereft, or fome other finifter motive, might operate in
their minds to the difadvantage of the infant under their guard-ianfhip,
an evil which is provided againft by leaving an option to the infant
after maturity.— It is to be obferved, however, that this cafe, apply-
ing -generally to all except the father and grandfather, includes the
mother of the infant, and alfo the Kazee-, becaufe the former, as
being a woman, is deficient in judgment; and the latter, as a ftranger,
in affedtion; and confequently a right of option muft be referved to the
infant after maturity.— It is alfo to be remarked that, in diflolving the
marriage, the decree of the Kazee is a neceflary condition in all
cafes of option exerted after maturity: contrary to the rule in-the
exertion o f a fimilar right of option after manumiflion ; that is to fay,
if a mafter marry his female flaye to any perfon-, and afterwards emancipate
her, fhe will have a right of option upon her emancipation;; i f
the pleafe the marriage continues, but if fhe difapprove-it is diflolved;
and the decree of the Kazee is not eflential to fuch d iflolution bu t
it is otherwife in the cafe of option after maturity; becaufe that option
is referved with a view to guard againft injury to the. other rights of
the parties, which might occur in a variety of inftances, and which, i f
admitted, (as, if the marriage were abfolute, they muft be,) would
be calculated to introduce many evils into the married ftate, fince the
guardian might, for inftance, in executing the contradt, agree to an
inadequate dower, or to an unequal match; and as the diflolution of
the marriage thus tends to affedt other rights, a decree of the Kazee
is
Cafe which
admits an
option of ac-
quiefcence
afterpuberty.