folved before
con fum relation;
but in cafe
of confum-
mation, ihe
is entitled to
her proper
no obligation with refpeft to dower is involved in tne contraft, as
that, in fuch a cafe, is alfo n ull; nor is the dower held to be due on
any other ground than the fruition o f the connubial enjoyment, which
is not found in the prefent inftance.— In the fame manner no dower
is due after Khalwat Saheeh, or complete retirement, becaufe, on account
of the invalidity of the marriage, the law does not confider
retirement as indicating the commiffion of the carnal aft, and confe-
quently it does not Hand as fuch.— It-is however to be obferved that
in an invalid marriage a feparate dower is not due on account of
every repetition of the carnal aft, becaufe here the right of pofleffioii
is doubtful, and the cafe is therefore the fame as where a man has
repeated carnal connexion with the Have of his fon,— or where a mall
has repeated carnal connexion with his wife, and it Ihould afterwards
appear that he had fulpended the divorce of that woman upon the cir-
cumftance of his marrying her,— in either of which cafes one dower
only is due, becaufe of a doubt refpefting the right of poffeffion: contrary
to a cafe where a man has repeated carnal connexion with the
Have of his father, his mother, or his wife, and pleads his conception
o f the fame being law fu l; for in this cafe a dower is incumbent
upon him for every repetition of the aft, becaufe here no doubt exifts,
as he appears, on every repetition, to have-had carnal connexion with
a Have who is the abfolute property of another:— and contrary, alfo,
to a cafe where a man has repeated carnal connexion with a. female
Have held in partnerlhip between himfelf and another, for in this
cafe an h a lf fine is incumbent upon him for every repetition (according
to the determination in the Burhdnal Aima of Abdal-azeez-
Bin Amroo,') becaufe he has every time committed the carnal aft in
the lhare of his partner.
I f a man engage with a woman in an invalid marriage, ana
have carnal connexion with her, Ihe is in this cafe entitled to
her proper dower: but Ihe is not entitled to more than the fipecf
5 • '■ f l i
lied dower*, according to our doftors.— This is contrary to the opinion
of Zijfer, who conceives an analogy between this and an invalid-
fale; that is to fay, in an invalid fale, if the ftipulated price of the
thing fold be Ihort of its aftual value, the latter is due to whatever
amount; arid fo alfo. in the prefent cafe.— The argument of our doctors,
in this cafe, is that the thing which the hulband has., received
(namely, the pofleffion of the woman’ s perfon) is not property, and
therefore is not appreciable in any other way than by the affignment
of a dower; now if the dower affigned Ihould exceed the proper
dower, the excefs is not incumbent, becaufe of the invalidity of the
affignment, for that is a part of the contraft, which being invalid,
the affignment is fo likewife; and, on the other hand, if the dower
affigned be. Jhort o f the proper dower, the difference is not incumbent,
becaufe, with refpeft to that, affignment has not been
made : contrary to an invalid fa le, becaufe. there the thing.fold is appreciable,
and confequently the amount of the return will be adjufted
by its value; , , . ,
T h e obfervance of an Edit, after feparation, is incumbent upon a
woman with whom a man has had carnal connexion in an invalid
marriage; And here the Edit is to commence as from the date of feparation,
and not from that of the laft carnal connexion. - -
T he defeent of a child born of a woman enjoyed in an illegal
marriage is eftablilhed [in the reputed father,] becaufe in this regard
is had to the child’s prefervation, fince i f the defeent were not to be
. eftablilhed, the child might perilh for want of earn.-ffitohammed holds
(and decrees are paffed agreeable to this doftrine) that, in the eftablilh-
ment of genealogy under an invalid marriage, the time -j- is calculated
* That is to fay, if her proper dower fhould exceed in value the dower fpecified in the
contrail, yet the woman is entitled to the fpecified dower only, and not' to'her proper dower.
t The probable term o f pregnancy, by which the child’s defeent is to be judged of and
afeertained. (For a further elucidation of this point fee Book of Divorce, Chap. X III.)
U 2 ' from
dower, not
exceeding /
what is fpecified
in the.
contrail j
and (he muft
obferve an
Edit after feparation.
A child born
in an illegal
marriage is
of eftablilhed
defeent.