1%
but, i f pregnant,
fliemuft
wait until her
-delivery.
In a cafe of
a p o jia c y , reparation
takes
place,without
■ di-vorce.:
M A R R I A G E . Book II.
I f the woman in queftion be pregnant, fhe mull not many until
file be delivered.— This is the doctrine of the Zahir Zawdyet._It Js
recorded from Haneefa that her mari'iage is approved; but her huf-
band mu ft not have carnal connexion with her until after her delivery
as is the rule with women pregnant by fornication.— The ground of
the former opinion is that the parentage of the foetus is afeertained
(as from fome alien, ] and therefore the former matrimonial tie is
regarded, with refpeft to the eftablifhment of parentage, and muft
confequently be fo, with refpeft to forbidding her marriage likewife
on a principle o f caution.
I f either hufband or wife apoftatize from the faith, a feparation
takes place, without divorce, according to Haneefa. and Aboo Toofaf.
— Mohammed, alleges that, i f the apofracy be on the part of the hulband,
the feparation is a divorce, becaufe he conceives.an analogy between
this cafe and that of the hulband refilling the faith; for as, in the
latter inftance, he by his refufal appears wilfully to withhold the cuf-
tomary benevolence from his wife, -where he has it frill in his power
to continue it to her, fo likewife in the former, by his apofracy._
Aboo Toofcf holds here to his opinion as before recited in the cafe of
refufal.— Haneefa makes a diftinftion between refufal of the faith and
apofracy from i t ; and his reafon for this diftinftion is that apofracy
annuls -marriage, becaufe the blood of an apoftate no longer remains
under the protection of the law, and his life is Mobah [free to .any one
to take;] now divorce is ufed for the purpofe of diflolying a marriage
which actually exifrs; and hence apofracy* cannot poffibly be confidered
as divorce: contrary to the cafe of refufal of the faith, becaufe it is on
account of the ends of matrimony being thereby defeated that-feparation
is enjoined, in that infrance, as has been already feid; and for this
reafon it is that the feparation is there .fufpended upon a decree of the
magiftrate, whereas'in apofracy-it .takes place without any Rich decree.
— It is to be obferved, howeyer, that i f the apofracy be on the part of
the hufband, bi§, -wife is entitled to-her whole dower where he has had
carnal
carnal connexion with her, or to h a lf her dower in defeft of this:—
and where the apofracy is on the part of the wife, Are is in like manner
entitled to her whole dower, if her hulband has had carnal,
connexion with her; but i f not, fhe has no claim whatever either to
dower or alimony, becaufe the feparation is in this cafe a confequence
of her own aft.
If the hufband and wife fhould both apofratize together, and ba* if.man5
j 1 r • 1 ~ i r ° 7 and wife afterwards return to the faith at the fame time, their marriage is, by apoftatize to-
a favourable conftruftion of the law, permitted to endure.— Ziffer fays m ^riagfftiu
that it is annulled, becaufe the apofracy of any one of them forbids the continues-
duration of it, and where that appears in both, it is found in one of
them:— but our doftors, in fupport of their opinion,, cite an inftance
recorded to have happened in the time of the blefled companions [of
the prophet,] when the tribe o f Binney Haneefa, after havino - apofta-
tized, returned to the faith, and the companions did not direft them
to renew their marriage; and their apoftacies were all confidered as
having taken place at the fame time, becaufe of the uncertainty o f the
dates.— But if, after their joint apofracy, either the hufband or wife
were fingly to return to the faith, their marriage is diffolved, becaufe
here one of them perfifts in apofracy, and that forbids the continuance
of marriage, the fame as. it does the matrimonial engagement
at firft. 5 0
CHAP.