É Ut *■
1 1
f ! ’ll
i ï
rizcd to take the infant’s half dower from the adult, in either cafe,—
that is to fay, whether a diflolution of the marriage may have been
her intention or not; but the former .(which is the Zahir Rawdyei) is
the more orthodox opinion, becaufe, although the adult has by her
a£t fixed and rendered binding upon the hulband the half dower afore-
laid, (which had before Rood .within the poffibility o f dropping * ,) and
her fo 'doing amounts to a damage, yet Ihe here ftands (not as the actual
perpetrator, but) as the caufe of the damage, fince the a£t of
giving her milk to the infant is not the oceafion of diflolving the marriage
any further than as it induces a confequence of joint cohabitation
"with a /ftp-mother and Jlep-daughter:— moreover, the annulling .of
a marriage is not what renders a dower obligatory, but is rather thelj
oceafion of its dropping; but the h a lf dower is incumbent, in the
.manner ,ef a Matat, or prefent, in compliance with eftablilhed caf-
,tom; and the annulling of the marriage is the condition of its becoming
incumbent; and in this view the adult is the caufe of the damage;
and as being the caufe only, and not the ahtual perpetrator, tranfgreffion
is made a condition of her f efponfibility, the fame as in the cafe of
digging a well,— that is .to fay, i f a perfon were to tranfgrefs, in digging
a well, by finking it in .another perfon’s ground, or in the highway,
he is refponfible for the Deeyat of any one- who might 'happen to
fall into it, whereas, i f the well were funk in his own ground, he|
would .not be refponfible:— now this tranfgreffion is not found in the
adult., unlefs where Ihe is aware of the infant being the wife of her
hufband, and that her view in hackling it is a diflolution of the marriage;
but where Ihe is not aware of that circumllance, or being fo,
yet gives her milk, not with any view of diflolving the marriage, but
rather, of preferving the infant from periihing, in neither of. thefe
.cafes is tranfgreffion fuppofed to exift; and, in .the fame manner, it
* T h a t is to fay, the obligation o f w hich might poffîbly have been annulled or cancelled
b y the occurrence o f fome accident previous to the payment o f it , fuch as the decent
o f the infant before confurnination o f the marriage, &c._
does
does not exift, if fhe knew, that the infant is the wife of her hulband,
but be not aware that her fuckling it will oceafion a diflolution o f the
marriage.
O b j e c t i o n .— No regard'is paid to ignorance o f the law in a Muf-
fulman territory; how, therefore, can ignorance be pleaded in her ex-
cufe in the prefent cafe ?
R e p l y .- Regard is here paid to her ignorance, not in order to-
aveit the fentence of the law, (which induces refjponfibility upon
her,) but folely to avert the conftrudion of intent o f dilfolution, or
of wilful tranfgreffion, to which her aft might other wife be liable,
i ai*d which being thus dlfproved, fhe is exonerated from refponfibility,.
I as thefe are the only caufes thereof,, and neither of them can apply to
1 her.
T he evidence of women alone is not fufficient to eftablifh fofter-
age; nor can it be eftablilhed but on the teftimony o f two men, or of
one man and two women.— Imam Malik has faid that it may be efta-
| rifled on the evidence of one woman, provided fhe be an gldil, becaufe
I prohibition is one o f the rights o f the law, and may therefore be
eftablilhed upon a Angle information,— as, for inftance, where a per-
fon purchafes flefh meat, and any one bears teftimony to its being part
I of a Majoofee facrifice, in which Cafe prohibition is eftablilhed with
[ I'efpeft to it.— T h e argument o f our dodlors is that the eftablilhment.
of prohibition in marriage is in no relpedt different from the extinction
°f a right of pofieffion>; and the annulling o f a right of poflelfion can---
oot take place but upon the evidence of two men, or of one man and
two w om e n c o n t r a r y to the cafe o f Jlefk meat, as the prohibition
to the eating may be eftablilhed without affecting the proprietor’ s right
°f poflelfion, it ftill remaining bis property under that prohibition:_
the prohibition o f this article, therefore,., appears to be merely a matter
lof religion and in which, confequently, a Angle evidence fuffices. .
Evidence
to fofterage
reqniresthe---
full number
of witneffes.