The marriage
of an Infidel
couple is not
diffolved by
their jointly
-embracing
the faith,
C H A P . V.
Of the Marriage of Infidels.
I k an Infidel man and woman marry without witneffes, or whilfl
the woman is in her Edit from a former Infidel hulband, and this be
no objection by the rules of their own feet, and they afterwards,embrace
the faith together, their marriage remains valid.— This is according
to Haneefa.— Zijfer maintains the marriage to be invalid in'
either cafe,— (that is to fay, whether it be entered into without witneffes,
or during the woman’ s Edit,') but that Infidels are not liable to
be called to an account until they embrace IJldm, or until they appeal
to the law,— that is to fay, carry the matter before the judges— The
two difciples coincide with Haneefa in the firft cafe,, [the defedt of
witnefiesj but agree with Zijfer in the laft [the E d it,] The argument
of Zijfer is that the word of the facred writings extends to all
men alike, and confequently to Infidels; but the parties, a,s being
Zimmees, are not liable to molellation -r but this exemption from mo-
lellation is an effedt of indulgence, and does not proceed from any
idea of the marriage being legal; and of courfe, where it becomes
fubjedt of litigation, or the parties become Mujfulmans, feparation.:
mull enfue, the illegality of their marriage Hill remaining.— The
arguments of the two difciples are that the illegality of Poliandry is
univerfally admitted among!! Mujfulmans, and that Infidel fubjedts have
engaged to follow the temporal law In all fuch points as are univerfally
admitted ; but with refjpedt to the illegality of marriage without wit-
nefles there fubfifts a difference of opinion among the Mujfulmans;
and Infidels have engaged only to follow fuch temporal laws of IJldm as
are univerfally admitted, and not fuch as are difputed-, hence, in the
Tcafe
cafe o f Poliandry a feparation becomes neceflary, but not in the cafe
of marriage without witnefles.— Haneefa argues ■ that the marriage is
not rendered illegal by the injundtions of the law, becaufe thofe in-
jundtions are, not addreffed to Infidels; neither does any reafon exift
why the Edit fhould be obligatory on account of the right of a huf-
band who has no faith in the neceffity of i t : contrary to a cafe where
the Infidel woman is the wife of a Mujfulman, becaufe he has faith in
the neceffity of Edit-, and therefore the illegality of her marriage
[with the Infidel) fhould in this, cafe be eftablifhed, on account of
his [the Mujfulman s\ right.; and the marriage being valid abinitio,
on account of no illegality appearing therein, continues to exift as
fuch, fince teftimony is not a condition with refpedt to the period of
1 its exiftence; and the circumftances of appeal to the law, or of con-
; verfion to the faith, take place during the exiftence of the marriage.:
| neither does the circumftance of the Edit; forbid the continuance o f
the marriage ; as. when a man (for inftance) has carnal connexion,
erroneoufly, with the wife of another, in which cafe an
Edit is incumbent upon the woman, but the marriage continues to
hold good.
If a Majoofee wed his mother or his daughter, and they afterwards
become Mujfulmans, they are to be feparated. This holds with the two
difciples, becaufe a marriage within the prohibited degrees is univerfally
admitted to be null, on which account the rule extends to Infidels
as well as Mujfulmans, (as before mentioned, from them, in the
cafe of E d it,) and the parties, upon their cotiverlion, being neceffarily
liable to moleftation on account of fuch marriage, it follows that a
feparation muft take, place upon that event; and it holds alfo with
Haneefa, becaufe, although fuch marriage be deemed, lawful in the
Rawayet Saheeh, yet the circumftance of the wife being within the
prohibited degrees forbids the continuance of it after converfion, on
which account feparation is to take place: contrary to the eircumftance;
unlefs it be a-,
marriage
within the
prohibited;
degrees s,