Cafe of a
dower fpecified
after
marriage.
Cafe of an
addition
made to the
of Ayfha and Ibn Abbas.— From the reftridlion-of the prefent to fuch
materials as are fuitable to the woman, it would appear that, in the
adjuftment, regard Ihould be had to the woman’s ftate and condition,
(and fuch is the doitrine of Kooroibee,') becaufe it is a fort of lubfti-
tute for the woman’s proper dower:— but the more approved doitrine
on this point is, that regard be had folely to the ftate and condition of
the hufband, becaufe of the words of the faered text before quoted,
“ — T h e r i c h a c c o r d i n g t o h i s w e a l t h , a n d t h e p o o r a c -
“ c o r d i n g T O H IS p o v e r t y . ” — It is to be remarked, that the prefent
muft not exceed in value one half of the woman’s proper dower,
nor be worth lefs than five Dirms: the fame is recorded in the
Mabfeot.
I f a man marry a woman without naming any dower, and the
parties Ihould afterwards agree to a dower, and fpecify its amount,
Inch dower goes to the woman, if the hulband either confummate
the marriage or die; but if he divorce her before confummation, Ihe
receives only a prefent. With Aboo Yoofaf Ihe, in this cafe, receives
one half o f the dower fpecified, (and fuch alfo is the opinion of
Shafei,) becaufe here the dower has been made obligatory and fpecifi-
cally determined, and confequently one half is due, according to the
words o f the text, m Y e s h a l l p a y t h e m o n e h a l f o f w h a t y e
t f h a v e s e t t l e d . ” The argument of our doctors is that, in the
prefent cafe, the Ipecification of the dower identifies a thing which
was due on account of the contrail, to wit, the woman’s proper
dower; and as this is incapable o f fubdivifion, Confequently that which
is its fubftitute cannot be halved.— With refpect to the text above
quoted, it is to be regarded as applying folely to what has been agreed
to and fpecified at the period of the contrail: this being agreeable to
what is cuftomary.
I f a man make any addition to . the dower in behalf o f his wife
fubfequent to the contrail, fuch addition is binding upon him,— This
I 1 1 1 1 ' , I is
is contrary to the doilrine of Ziffer, as Ihall be demonftrated in treating
of an increafe of price in a contrail of fale.— But although fuch
after-addition to the dower be thus approved, yet it drops in confe-
quence of divorce before confummation.— According to an opinion of
Aboo Yoofaf, the woman is entitled to the half of the additional, together
with that of the original, dower.— The caufe of this difference
of opinion is that, with Haneefa and Mohammed, nothing is halved
but what has been rendered obligatory, and Ipecifically determined;
whereas Aboo Yoofaf holds whatever is engaged for after the contrail
to be the fame as that which is made obligatory in the contrail, and
therefore confiders it as fubjeit to the fame rule.
If a woman exonerate her hulband from any part, or even from
the whole, of the dower,:, it is approved; becaufe, after the execution
jof the eontraft,, it is her foie right, (as was already explained,) and
the cafe fuppofes her dereliilion of it to take place at a fubfequent
[period.
If a man retire with his wife, and there be no legal or natural
obftruilion to the commiffion of the carnal aft, and he afterwards
'divorce her, the whole dower in this cafe goes-to her '.■ ^Shafei maintains
that Ihe is here to receive no more than her h a lf dower, becaufe .
the hulband cannot obtain poflelfion of the objeil of the contrail but
[by. aibual coition; and the right to the dower is not corroborated-and.
[confirmed: without enjoyment.. — The argument of our doftors is;
that the woman has,completed her part.of the contrail, by delivering
[up her perfon, and by removing all obftpuftions,, which is the extent
[of her ability; .her right-to the recompenfe is therefore cqnfirmed-and
[corroborated; in the fame manner as in, a cafe o f fale, where i f the
[feller have offered delivery of the goods fold,, and there be nothing to
ybftruft feizin on the part of the purchafer, and the latter negleft to
make feizin, he is confidered as having made feizin, and the purchafe is,
i afterwards
dower after
marriage.
A wife may
remit the
whole dower.
Cafe o f Khal-
'wat-Saheeh,
or retirement.