M A R R I A G E .
fiance of Edit, which (according to Haneefa) does not forbid the continuance
of the marriage.
Ihemonlybe I f 01lI-v o n e o f th e Pa r t ie s be converted to the faith, a reparation
converted, a follows; but if one only appeal, Haneefa holds that reparation does
takes place. not ta^e place: contrary to the opinion of the two dodtors, according
to whom reparation takes place in this cafe alfo.— T h e reafon, with
Haneefa, for making this diftindtion between thefe two cafes is, that
the right of one party is not invalidated by the appeal of the other
as the faith of the one is not altered by the appeal of the other: but
where one of the parties becomes a Mujfulman, although the faith of
the other be not altered by that event, yet the faith of an In f del is not
fufficient to controvert or oppofe the I f dm of a Mufulmcin, as Ifdm is
the fubjellor and cannot be fubjedled.— But where both the parties
enter into a litigation, it is univerfally agreed that reparation takes
place, becaufe this mutual litigation amounts to both authorizing any
third perfon to effedt a reparation between them, which i f they were
to do, the reparation fo effected would be legal.
I t is not lawful that an apoftate marry any woman, whether die
be a believer, an Infidel, or an apoftate, becaufe an apoftate is liable
to be put to death; moreover, his three days of grace are granted in
.order that he may refled upon the errors which occafion his apoftacy;
and as marriage would interfere with fuch refledion, the law does nut
permit it .to him.
Tn like manner, it is not lawful that a female apoftate marry any
-man, whether Mujfulman or Infidel, becaufe fhe is imprifoned for
the purpofe of refledion, (as above,) and her attention to her hufband
would interfere therewith: moreover, this circumftance of
her imprifonment neceflarily prevents the matrimonial intercourfe;
— now marriage is lawful, not in relped to itfelfi but to its ends,
8 and
Apoftates are
incapacitated
from marrying.
Chap. v . M A R R 1 A G E. *77
and confequently, where thefe are defeated, it cannot be deemed in
any refped legal.
W h e n e v e r either the hufband or the wife i s a Mujfulman, their i f either the
. . . father or mochildren
are to be educated m the MuJJulman faith. And if either one ther be Muf-
or other [of an Infidel couple] become a Mujfulman, and they have
infant children, thofe are to be confidered as Mujfulmans, in virtue of Mujjulmam:
the Ifiam of one of their parents, becaufe this is tendernefs to the
children.
If one of a married c'ouple be a Kitabee, and the other a Majoofee, or where one
their' children are to be regarded as Kitabees, becaufe, in this alfo rior ord efof'
there is a degree of tendernefs with refpedt to the children, as a Ma~ ^ ^ 'therof
ioofee is worfe than a Kitabee. This «"contrary to the dodtrine hf *» H &|9
J J # # i r • ƒ their children
Shifei, who holds the infidelity o f a Majoofee,. and that of a Kitabee, are of the J 'u -
to be equal: but with our dodtors a Kitabee is held fuperior to a Ma- ?‘ r‘°r or er-
joofee.
W hen the wife becomes a convert to the faith, and her hufband Upon the
, M M H . t i / i i i t converiion of
is an Infidel, me magiftrate is to call upon the hulband to embrace the •one of the
faith alfo ; if he accede, the woman continues his wife 4 but if he re- is
fufe, the magiftrate muft feparate them-, and this feparation, with to require the
° t . other to em-
Haneefa and Mohammed, is a divorce.— In like manner, i f the hufband brace the
become a Mujfulman, and-his wife be a Majoofee, the magiftrate is to feparate
call upon her to embrace the faith alfo; i f fhe accede, fhe remains his th5m> “ cafe
r . of recufancy.
wife; but if fhe refufe, the magiftrate muft feparate them; but this
feparation is not divorce.— Abeo Toofaf has faid that the feparation is
not divorce in either cafe.------What is here advanced of the magiftrate
calling upon the party to embrace the faith, is an opinion of our doc-
tots.— Shafei maintains that the magiftrate is not to make any fuch
requifition, becaufe this is moleftatim, and we have engaged not to
moleft Zimmees, as they have entered into a contrail of fubjedtion
to us.
V ol. I. A a O b j e c t i o n .