Separation in
confequenee •
of option is
not di-vor.ce.
Rufe of inheritance
in
the marriage
of infants..
Perfons incapable
of
ailing as
mailer, namely, emancipation; and hence' regard -Is had to the
Majlis in this cafe, as well as in that of a woman endowed by her
hulband with an option of divorce..
A feparation between , a hulband and wife in confequenee o f option
after maturity is not divorce, from whatever fide it proceed, becaufe
it may with propriety proceed from the wife, whereas divorce Cannot,
And fo alfo, feparation in confequenee of option after manumifiioii is.
not divorce, for the fame reafon.
If a girl who has been contracted in marriage by her guardians, as
already Hated,, fhould die' before flie attain maturity, her hulband inherits
of h er: and, in like manner, i f a youth lb contracted would die
before he attain maturity, his wife inherit« of him-;'—-and fo alfo if
either fhould happen to die after maturity, without a feparation bavin»
taken place;— becaufe the marriage contract was Regular and valid ab
origine, and would remain fo, until diflblved by the diflettt of one or
both of the parties in the event of their arriving at maturity; but this
being; precluded by the demife of one of them, -the marriage Continues,
good for ever; and confequently all the mutual privileges eftablifhed
in the parties, by the marriage are irreverfibly confirmed by the de-
ceafe of either of them:— contrary to the cafe of a marriage contracted
by an unauthorized perfon, where, i f either of the parties were to
die before affent being duly expreffed, the other would not inherit;
becaufe, in this cafe, the exiflence of the marriage is fufpended upon
the confeni o f the parties, and is- confequently rendered null by the
demife of either previous to the declaration of their will in it; whereas,
in the other cafe, the deeeafe of either party, previous to maturity or
feparation, as aforefaid,. does not annuli., but rather confirms: their marriage,
-Au tho rity to contract others in marriage is not veiled in a Have,
an infant, or a lunatic, becaufe fuch perfons, being confidered in law
as
I as incapable of a fling for themfelves, are incompetent to exercife any
I authority over others, a fo r tio r i: moreover, this authority is ellablilhed
I in guardians and others out of tendernefs to perfons who, from their
I fituation, require attention and care, (fuch as infants and lunatics;)
I but this would not be manifelted by committing the execution of
I marriage, on their behalf, to perfons of the above deferiptions.
A n infidel cannot be veiled with this authority with refpeCt to a
I Muffulman, male or female, becaufe the word of G od fays “ H e
K “ DOTH NOT ADMIT INFIDELS TO ANY CLAIM UPON BELIEVERS;”
I and, if this authority were veiled in infidels, it would be admitting
I them to fuch a claim: and hence alfo it is, that the evidence of in-
■ fidels regarding Mujfulmans is not admitted; and, upon the lame prin-
I ciple, that Mujfulmans and infidels cannot inherit of each other.
A n infidel is veiled with this authority with refpect to his children
■ who are infidels, the word of G od faying “ Infidels m a y exercise
I w authority over in f id e l s ;” whence it is that the evidence of
I infidels regarding infidels is admitted, and that inheritance obtains among
I them.
In defedt of paternal relations, authority to contrail marriage ap-
■ pertains to the maternal, (if they be of the fame family or tribe,)
I fuch as the mother, or the maternal uncle or aunt, and all others
I within the prohibited degrees, according to Hancefa, upon a principle
I of benevolence.— Mohammed alleges that this authority is not veiled
I in any except the paternal kindred ; and there is alio an opinion of
I Hancefa on record to this effect.— O f Aboo Yoofiafi two opinions have
I been mentioned ; according to that moll generally received, he coincides
with Mohammed: and their arguments on this liibjefl are twofold :
first, thp prophet has declared “ Marriage is committed to the paternal
kindred," (as uzvas before quoted;) secondly, the only
realon for inftituting this authority is, that families may be preferved
P 2 from
guardians in
marriage.
Maternal relations
may
aft in defeft
of the paternal;