and to one
half, upon
divorce before
con fum-
roation.
namely, the Booza, or womans perfon * , is eftablifhed, and therein
is confirmed the right to the confideration, namely, the dower;
and, on the other hand, by the deceafe of the hufband the marriage
is rendered complete, and every thing becomes eftablifhed and confirmed
by its completion, and confequently is fb with refpedt to all its
effedts- 1
I f the hufband, in the cafe now hated, were to divorce his wife
before confummation, o rKhalwat Saheeb-f, the, in this cafe, receives
half her fpecified dower; G od having commanded, faying, “ I f ye
“ DIVORCE THEM BEFORE YE HAVE TOUCHED THEM, AND HAVE
“ ALREADY SETTLED A DOWER ON THEM, YE SHALL PAY THEM
“ ONE HALE OF WHAT YE HAVE SETTLED.”
O b j e c t i o n .^— It would here appear that the whole dower fhould
of right drop, becaufe the objedt o f the contract revert-s to the woman
untouched, the fame as in. fale, where the whole price drops,, i f the
buyer and feller break o ff the contradl-
R e p l y .— There are two analogical conclufions applicable to this
fubjedt; f i r s t , what is recited in the above objection; s e c o n d l y ,
it would appear that the whole dower is due, becaufe the hufband did
not make ufe of his pofleffion, but fufFered it to pafs from him untouched
of his own choice; as in fale, where the. whole price of a
purchafe is, due, i f the purchafer fuffer the goods'to perifh in the
hands of the feller; and thefe two conclufions diredtly contradidting
each other, they are both abandoned, and we adhere to the facred text
as above.— This cafe fuppofes the divorce to take place before Khalwat,
or retirement, becaufe that with a wife is held, by our
dbdtors, to amount to carnal knowledge; as fhall be hereafter explained.
* Literally, Genitals arvum Multeris.,
+ Retirement, p lu s cum fola, where there is no Tegal' or natural impediment to the
commiflion of the carnal aft. It is elfewhere tranflated complete retirement.
Je
If a man marry a woman without fpecifying any dower, or on
the exprefs flipulation that fhe fhall not have a dower, and he either
have carnal connexion with her, or die, fhe is in that cafe entitled to
her Mihr-Mifl, or proper dower.— Shafe'i alleges that where the hufband
dies, nothing whatever remains due : but • many of his difciples
and followers admit that the woman’s proper dower is due in cafe of
carnal connexion.-—The argument of Shafe'i is that the dower is purely
a right of the woman ; whence it is in her power to relinquifh it a
priori, Tor the fame reafbn as fhe is at liberty to remit it afterwards.—
To this our doctors reply that in the dower are involved rights of three
different defcriptions ; the f ir s t , the right of the law, which is that
it fhall not confift of lefs than ten Dirms, (as has beerylready faid;)
the second, the right of the guardians, which is that it fhall not be
fltort of the woman’s proper dower; and the th ird , the right of the
woman, which is that it fhall become her property. . Now th'S?I|ght
of the law and the right of the guardians are to be regarded in thé
execution of the contract, but not its continuanceconfequently, in
the continuance, the dower is the right of the woman folely; and
hence it is that fhe is empowered to give it up or r.elinquifh it in the
continuance of the contraft, but not a.priori.
If a man marry a- woman- without any fpecification of a dower, or
on condition of there being no dower, and divorce her before carnal
connexion, the woman in this cafe receives a Matât, or prefent ;—
God having, commanded, faying, “ G iv e her a pr esen t,, the
“ RICH ACCORDING TO HIS-WEALTH, AND THE POOR ACCORDING
“ To his poverty thus a prefent is incumbent.upon the hufband,
on the authority of the facred writings :— but this is contrary to the
doftrine of Mâlik.— The Matât, or prefent, here mentioned, is to
confifl of three pieces of drefs, compofed.of fuch materials as are fuit-
able to the woman to whom it is given ; and thefe are, the Dirra, or
fhift ; the Khoomar, or veil ; and the Mulhaffet, or outer garment.
The quantity is. determined at three pieces of drefs, on the authority
of
Where no
dower is 1U~
pulated in
the contra#,
the wife receives
her
proper dower;
or a prefent,
in cafe of divorce
before
co illumination.