A female
flave, upon
obtaining her
freedom, has
a right to annul
die marriage
con-
tradl, where
it was executed
with
her owner’s
confent j
female flave, who is the property of the perfon having fuch connexion
with h e r* , becaufe carnal connexion is not her right, (whence it is
that the is not entitled to claim the carnal a£t of her mafter or owner,)
and confequently her confent is not. a condition.— The principle upon
which the Zâhir Rawdyet proceeds in this cafe is, that the aft of Azil
defeats the intention of marriage, which is the produit ion of children,
and this is a right of the mafter +; whence it is that his confent is a
condition, and not that of the And herein appears a ' diftindtion
between the ftate.of a free woman and that of a flave [in
marriage.]
If a female flave marry with her owner’ s confent j , and afterwards
become free, fhe is then at liberty either to break off the marriage,
or to continue it, whether her hufband be a flave, or a freeman,
becaufe, upon Barreera (who was a Mokâtiba of ylyjha) becoming
free, the prophet faid to her “ You are now miflrefs o f your
“ sown perfon, and therefore at your own difpofal,fÿr—w\ô.e\i tradition
evinces that fhe is at liberty as above., whether her hufband be a flave
or a freeman ; fince the caufe of her right of option, as there mentioned,
(that is, her being miftrefs of her own perfon,) exifts equally
in either cafe.—-Shaféi maintains that fhe has no fuch right of option,
where her hufband is a freeman.: the tradition ahoye quoted, however,
is in proof againft him : moreover, the power of the hufband
with refpedt to his wife is greater after her emancipation than it was
before, becaufe before fhe was free he. had power to pronounce ;only
-P double fentence.of divorce, whereas,.afterwards he. is authorized .t.o
pronounce three divorce^, . on which account.fhe is juftly empowered
to fet afide the contrail of marriage, fo as .that her hufband may not
.obtain any additional authority with refpei) to her in confequence of
* As where a matter has connexion with his female Have in .virtue of propriety.
t Becaufe he has a property in the children horn of his flaye.
That is, at his irrigation.
her
her emancipation. And the rule is the fame where a Miokâtiba marries
with her owner’s confent, and afterward becomes free.— Ziffer fays
that a Mokâtiba has no right of option, becaufe the contrail o f mar-
riage proceeded by, and was executed with, her efpecial confent, and
fhe receives the dower * , and fuch being the cafe, fhe can have no
fubfequent right of option : contrary to the cafe of an abfolute flave,
whofe confent in marriage is not regarded.— T h e argument of our
doitors is that the reafon for her right of option, (to wit, the aecef-
fion, to the hufband, of an additional authority with refpeit to her,)
appears in the cafe of a Mokâtiba, the fame as in that o f an abfolute
flave, for before freedom the term o f her Edit was only two men-
flruations, and fhe was fubjeil to no more than a duplicate fentence
of divorcé ; whereas, in her ftate of freedom, her Edit includes three
menftruations, and fhe is fubjeil to three div oreçs.
I f a female flave marry without her owner’s confent, and be af- fetaot other-
J terwards made free, her marriage then becomes legal and valid, wife'
becaufe, being o f found mind and mature age, fhe is competent to
the declaration and acceptance; moreover, the illegality o f the marinage
was on account only of the owner's right, which being done
« a y , lt remains lawful: and the woman has not any Option^ as in
; the former cafe, becaufe the marriage is not in this cafe valid until
a ter emancipation, which confequently occafions no acceffion of
power to the hufband ; and hence the cafe'is the fame as i f fhe were to '
beftow herfelf in marriage after emancipation.
M a man marry a female flave, without her owner’s concurrence, I of a
ower of a thoufand Ihrms, her proper dower being one hundred “ “ T rry:
jrm s only, and he have carnal connexion with her, and her 0wner ^ e* «
Awards emancipate her, the fpecified dower goes to him [the io“ ’5
b ü flave> whofe dower is rccdved I her ("* 1
VOL. I,
■ Z owner,]