104
Tokens of
acquiefcence
after puberty.
Circum fiances
which
is eflential thereto: but, in the cafe of the female have, the right of
option after emancipation is intended 4s a fecurity againft an evident
injury to herfelf, as the huiband’s power over her is extended, and his
authority, as well as her obligations, in many reipeffs enlarged, by
her emancipation from flavery; whence it is. that this right o f option
is reftrifted to female Haves only, and does not extend to males, to whom
the above principle would not apply; and fuch being the cafe, the diflo-
lution of her marriage is to be regarded merely as the removal of a
hardihip from herfelf, in which the decree of the Kdzee is no way
tieceflary, fence all perfons are entitled to relieve themfelves from
eviL
If the female, thus contracted, during., infancy, be o f age when
the marriage-is firft mentioned to her, and Ihe upon that occafioa
remain felent, her filence, (according to Haneefa and Mohammed,) is to
be conftrued into confent; but if ihe continue ignorant of the contract,
her right of option is ftill referved to her, until fuch time as fee
is informed of it, and remain felent as above.— Mohammed, in this cafe,
makes it a condition that the girl be duly informed of the marriage,
becaufe fhe cannot exert her right of option without a knowledge of
that circumftance, as the guardian may effeft the marriage altogether
unknown to her, and it may confequently happen that fhe never hears
o f it, and of courfe fhe would remain excufed (as to her dienes') on the
ground of ignorance; but he does not make a knowledge, o f her right
of option a condition, becaufe that is an. inftitute of the law, and
ignorance is no plea with refpeft to an inftitute o f the, law, with
which it is fuppofed that, every perfbn ought to be acquainted; the
cafe is otherwife with a female flave, who being employed in the
fervice of her mafter has no opportunity to obtain any knowledge of.
the law, wherefore ignorance of this point is a good plea in favour of
the continuance of her right of option.
T he right of option in a virgin, after maturity, is done away by
8 her
her filence; but the right of option of a man is not done away by the
fame circumftance, nor until he exprefs his approbation by word or
by deed, fuch as prefenting her dower, cohabiting with her, and fo
forth : and in like manner the right of option of the female after maturity,
(in a cafe where the hufband has enjoyed her before Ihe attained
to that ftate,) is not annulled until Ihe exprefs her confent or
difapprobation in terms, (as if Ihe were to fay “ I approve,” or, “ I
“ difapprove,” ) or until her confent be virtually Ihewn by her con-
duff, in admitting the hufband to carnal connexion, and fe forth.
T he option of maturity of a virgin is not protrafted to the end of
the aflembly'*; but that of a Siyeeba, or a youth, is not annulled even
by the riling from the alfembly, becaufe the option of maturity is
eftablilhed by diflent, on account of the apprehenfion of the ends of
marriage being defeated ; and whatever is eftablilhed by diflent is annulled
by aflent, on account of its advantage being obtained; now the
filence of a virgin .is aflent, but not that of a Siyeeba, or a youth-,
wherefore the option of the former is annulled, but not that of the
two latter:— moreover, a Siyeeba's option of maturity t has not been
eftablilhed by the aft o f her hufband, as is evident; and a circumftance
which is not eftablilhed by the aft of the hulband is not reftrifted to
that aflembly, fince that only which is d eleg a ted is fo reftrifted, as
lhall be hereafter demonftrated § . contrary to the option of manu-
mifjion, as that is, not annulled by filence, but is pretrafted to the
end of the alfembly, and annulled by the riling from the aflembly,'
becaufe the option o f manumiflion is eftablilhed by the aft of the
Arab. M ajlis, meaning the place or company in which fhe may happen to be at the-
time other attaining maturity. It is treated o f at large elfewhere. Vide Index.
t By option o f maturity, and option o f manumiflion, is meant, option of acquiefcence
after maturity, or after manumiflion,
-1 Namely a power o f divorce. ' (
§ See Book of Divorce, Chap. III.
annul the
right of option.
Degree of the
continuance
of a right of
option after
maturity.