is obtained by the diilolution of the marriage, it does not require that
'all its effects be terminated. T h e argument of Haneefa is that
Khoola bears the finie of feparation, and that is. general, the fame as a
mutual difcharge, and canfeq.uently marriage is thereby terminated,
toge’ther with all its rights and eftefts, the fame as by a mutual dil-
charsre.
KUda enter- Ip a father tranfacl à Khoola with the hufband of his infant daugh-
fatheroifbe- ter, agreeing to pay the confideration out of her property, the Khoola
hdf of his not SBjjiM with refpedf to her, becaufe this exhibits no regard for her
infantdaugh- - r 7 _
ter is invalid, intereft, as her perfon is not appreciable in the dififolution o f a marriage,
whereas the confideration is fo : contrary .to marriage, (as where
a man contrails his infant daughter to another,) for that is valid, becaufe
the woman’s perfon, on entering into a marriage, is appreciable:
— and the woman’ s perfon not being appreciable in the diffolution of a
marriage, the Khoola of a wife fick of a mortal illnefs is confidered as
proceeding from the third of her property; but being appreciable upon
entrance into a marriage, if a man lick of a mortal illnefs were to
marry a woman on a proper dower, it is confidered as coming from
the whole of his property.— T h e Khoola,. therefore, being illegal,
the dower of the infant does not drop, nor does the hufband acquire
any right to her property.— There are two traditions with
refpeft to the a£t of the father occafioning divorce in this. in-
flance ; according to one divorce does take place ; but according
to the other it does not ; the former, however,' is the better
opinion, becaufe the Khoola is a fufpenfion of divorce upon the
confent of the father, which is the fame as upon any other condition.
unlefsheen- If a father tranfacl a Khoola on the part o f his infant daughter,
himfeif re-d for a certain fum, engaging to hold himfelf refponfible for the payfponfible
for the Khoola is valid, and the fum fpecified becomes in cumbent the compen- 7 r
fatipn, upon him, becaufe the engagement even of a ftranger for the con* ■
deration
deration o f Khoola is valid, and confequently that of a father
in a fuperior degree: in this inflance alfo the infant’s dower does not
drop, as the father has no authority with refpeéï to the relinquifoment
of it.— And if the father were to Hipulate that his daughter is to be
refponfible for the fum fpecified, this will depend upon her confent
where foe is competent, (that is-, capable of comprehending the nature
,of her fituation, and that of the prefent tranfaâion, and pronouncing
upon them;) and i f foe confent, divorce takes place, on
account of the condition being fulfilled upon which it is fulpended :
but the fum fpecified (or confideration) is not incumbent upon her, as
an infant is incapable of undertaking the difcharge o f any pecuniary
obligation.; and if the father confent on his daughter’s behalf, there
are two traditions concerning it ;— according to one, divorce does not
take place until foe foall eventually exprefs her confent ; and according
to another, divorce takes place independant o f it ; but here the
compenfation agreed for is not incumbent upon her at all events.— And
in the fame manner, i f a father, tranfacting a Khoola on the part of
his infant daughter, agree, that the compenfation foall confift of her
dower, and he happen not to be furety for the fame * , the validity o f
the Khoola depends upon the daughter’ s confent, which i f foe declare,
divorce takes place ;fcbut yet her dower does not drop : and here alfo, if
the father confent on his daughter’s behalf, there are two traditions
concerning it, as already Hated: if, however, he be furety for the
dower, amounting to one thoufand Dirms (for inflance,) divorce
takes place, becaufe the condition (namely confent) is exifting ; and
five hundred Dirms only are incumbent upon him, according to a favourable
conftrudion of the law. Analogy would fuggeft that he is
liable for the whole thoufand, upon this ground, that where an adult
woman traniadts Khoola on her own behalf, before confummation of
the marriage, for any fpecified fum, (fay one thoufand Dirms,) and
her dower be alfo one thoufand, the whole fum is incumbent upon
or refer it to
his daughter’s
confent.
* Sec Book of Marriage, Chap. III.
her.