The hufband
obtains full
authority
over his wife
uponpayment
of her dower.
Cafes of dif-
pute between
the parties
concerning
the amount
of dower ;
million o f the carnal aft, or a Angle inftance o f complete retirement,
neceflarily, becaufe every thing beyond that is then unknown, and
confequently cannot obftmdt the operation of what is known; but
the right of refiftance ftill remains, becaufe the dower is oppofed to
the whole, the fame as to the Jingle infiance, of enjoyment.
W h e n the hufhand has duly paid to his wife the whole of her
dower, he is at liberty to carry her wherever he pleafes, becaufe the
word of G o d fays, “ Y e s h a l l c a u s e t h e m t o r e s i d e i n Y<m
“ 0W N h a b i t a t i o n s . ” — Some have alleged that the hufband is not
at liberty to carry his wife to another city different from her own,
although he fhould have paid her the whole dower, becaufe journey,
mg and travelling maybe injurious to her; but he is at liberty to I
carry her to the villages in the vicinity o f her city, as this does not
amount to travellinQg.
If a man marry a woman, and they afterwards diipute concerning
the rate of her dower, the declaration of the wife is to be credited t l
the amount of her proper dower, and that of the hufband, with re-
fpedt to any excefs. This proceeds upon a fuppofition of his having |
had carnal connexion with her:— but if he fhould have divorced her
before confummation, his declaration alone is to be credited with
refpefit to the h a lf dower.— This :is the do&rine o f Hanefa and Mohammed.
Aboo Toojaf alleges that the declaration of the hufband is to
be credited, whether before divorce or after, unlefs where it goes to
-eftablifh fomething trifling,— that is to fay, fomething fo W l as is
known to be fhort of what fuch a woman has a right to expedt in
marriage according to general ufage; and this is approved. The argument
.of A im Tasfcf is that, in the cafe in queftion, the woman
is plaintiff fuing for an excefs, and the .hufband defendant; and the
fieclaiation of a defendant, when made upon oath, is to be credited;
wherefore that of the hufband, in the .prefent inftance, muff be fo,
■ «jslefs hp teffify to fomething fo frr.all as .that apparent circutpffances
argue
aro-ue againft him: and the ground upon which this proceeds, is that
the appreciation of the woman’ s perfon is a matter of necefllty; and,
therefore, fo long as it is poffible that any thing can be decreed from
the fiipulated dower, the,proper dower is not regarded.— T h e argument
ofHaneefa and Mohammed in this cafe is that, in all claims, credit muff
be given to the declaration of that perfon in whofe favour apparent cir-
cumftancesbear teftimony, and apparent circumffances Vo bearteftimony
with one who attefts the proper dower, as that is the ftandard objedt in
marriage;— fimilar to a cafe where a difpute arifes between a dyer and
the owner of a piece o f cloth, concerning the charge for dying, in
which cafe the declaration of that perfon will be credited in whofe
! behalf the value of the dye or colour bears teftimony * . Concerning
what is here advanced, that “ if the hufband fhould divorce bis wife
“ before confummation, his declaration alone is to be credited with
“ refpedt to the half dower;” it is to be obferved that this (which is
i recorded by Mohammed in the Jama Sagheer and Mabfoot) apparently
! contradidts. what he has advanced in the Jama Kabeer, to wit, that
“ the woman muff, in this cafe, be decreed a proportionable M at at,
“ or prefent,” — (which is conformable to the inference o f Haneefa and
Mohammed, who hold that, as a prefent is due, on account o f a con-
tradt of marriage, efter divorce, the fame as a proper dower, before
divorce, the one muff be decreed her in the former cafe, as well as
the other in the latter;)— but this apparent contradidtion between the,
above authorities may be reconciled, by adverting to the different
manner in which the cafe is put in them relpedtively; thus, in the
Mabfoot, the cafe fuppofes one thoufand Dirms and two thoufand,—
that is to fay, the hufband declares that the dower is only one thoufand
Dirms, and the wife claims two thoufand; now the value o f a cuf-
tomary prefent does not equal the h a lf of thofe fums, and of courfo,
to decree a prefent here would be no advantage to the plaintiff:-—hi
the Jama Kabeer, on the other hand, the cafe fuppofes ten Dirms, and
one hundred Dirms,— that is to fay, the hufband avers the dower to be
Becaufe, as different colours bear a different price, the value of the colour ufed is
certainly the only ftandard by which the amount of the charge for dying can be judged of.
V ol. I. X only