from reparation,
in con-
fequence of
her hufband’s
converfion.
The conver-
fionof the
hulband o f a
Kitab eea does
not occaiion
reparation.
Cafe of a
convert removing
from
a foreign land
into a Mujful-
inan territory.
alien, fhe is not fubjeCt to any obfervance of E dit, according to all the
doCtors.— Haneefa holds the rule to be the lame, where the woman
becomes a convert and her hulband is an alien; that is, that the woman,
in this cafe alfo, is not fubjeCt to any obfervance of E dit, but
the two difciples maintain that Ihe mull here obferve an Edit the fame
as would be incumbent upon her if Ihe were to come into the Mujfulman
territory; as lhall be hereafter demonftrated.
If the hulband of a Kitdbeea become a Mujfulman, their marriage
Hill endures, becaufe the marriage of a Mujfulman with a Kitdbeea
being legal ab initio, its continuance is fo a fortiori*
If either hulband or wife become a convert to. the faith in a
foreign country, and afterwards remove thence into the Mujfulman
territory, a reparation takes place between them:— this is contradicted
by Shafei:— but if either party be brought, as a captive; out of the
foreign country, feparation takes place between them, according to
all the doctors: if, however, both the parties be brought captives together,
we hold that there is no feparation; whereas Shafei lays that
feparation takes place.— Hence it may be collected that the circum-
llance of the parties reliding apart in different countries is held to be a
caufe of feparation by our doctors, but not that o f their Capture ~; and
that Shafei maintains the reverfe of this opinion-— The argument of
the latter is that feparation of country is a caufe of termination of authority,
but has no effect in occafioning an abfolute feparation in this
cafe, any more than where an alien refides under protection in a Muf
fulmant erritory, whilfthis wife remains in her own country; or where
,a Mujfulman goes under protection into a foreign land, leaving his
wife in the Mujfulman territory; in neither of which cafes would fe-
paration take place, and fo in this inftance likewife:— capture, on the
other hand, leads to this, that the captive is the foie and exclufive
property of the captor, which cannot be eftablilhed without a termination
of the former’ s marriage, as it is on the fame principle that a
5 captive
captive Hands virtually releafed from all his debts.— Our doctors, in
fupport of their opinion, argue that by feparation of country all matrimonial
intercourfe between the parties, whether actual or confequen-
tial is entirely broken off, and thus this feparation refembles illegality
by affinity; capture, on the other hand, occafions property in the
perfon, which does not forbid marriage at firft, for if a man contract
hisflave in marriage, it is lawful; and fo, alfo, it does not forbid the
continuance of the marriage; as in the cafe of purchafe, where i f a
perfon fhould purchafe a female flave, the wife of another, the marriage
does not, on that account, become null.— And in reply to what
Shafei has advanced with refpeCt to capture,— it is admitted that this
makes the captive the exclufive property o f the captor, in refpeCt to
fubftance, but the objeCt o f marriage, (to wit, the ufe of the woman’s
perfon,) is not fubflance, and therefore capture does not annul the
marriage: moreover, between a protected foreigner and his wife feparation
of abode does not virtually take place, as his ultimate intention
is to return home, whence he may be regarded, virtually,
as in a foreign country, during his refidence in the Mujfulman territory.
If a woman come out of a foreign country into the Mujfulman A woman,
I territory, and there become either a Zimmee, or a convert to the faith, ^foreign Tmo
I it is lawful for her to marry * ; and Haneefa holds that fhe is not under a Mujfulman
. . . . r J . ^ . -. country, is at
■ any obligation to oblerve an Edit.— The two difciples lay that Ihe liberty to
■ muft obferve an E dit, becaufe feparation takes place upon her enter- marry ’
I mg the Mujfulman territory, and fhe then becomes fubjeCt to the
I Mujfulman laws.— T h e argument of Haneefa is that the Edit is a con-
I fequence of an antecedent marriage, enjoined on account of the im-
I portance of the matrimonial tie ; but this tie is of no importance what-
I ever with refpeCt to foreigners, for which reafon it is that Edit is not
I enjoined upon a woman who is a captive.
* Although fhe be already married in the foreign country.
I f