A fnother
cannot remove
with
her child to a
ftrange place.
them tinder let ft reflra-int, wherefore giving them a choice in this
matter would not be tendernefs, but rather the reverfe, as being contrary
to their true intereft; and it appears in the N a il Saheeh that the
companions withheld this option from children.— With refpeft to the
tradition Cited by Shcfei, it may be obferved that, in the inftance there
alluded to, where the prophet gave a boy his choice, he firfl prayed
to G od to direft him therein, and the boy then chofe, under the influence
of the prophet’ s prayer.
S E C T I O N .
If a divorced woman be defirous of removing with her child out of
a city, Ihe is not at liberty to do it ;— but yet if fhe remove with her
child out of a city, and go to her native place, where the contract of
her marriage was executed, in this cafe her removal is lawful, becaufe
the father is confidered as having alfo undertaken to refide in that
place, both in the eye of the law, and according to common ufage,
for the prophet has faid “ Whoever marries a woman o f any city h
“ thereby rendered a D e n i z e n o f that city B and hence it is, that if
an alien woman were to come into the Muffulman territory, and there
to marry an infidel fubjeeft, fhe alfo becomes an infidel fubjeót: it is
to be obferved, however, that this rule does not apply to an alien
man,— that is to fay, if an alien man were to come into the MuJJulman
territory, and there to marry a female fubjeft, he is not thereby
rendered a fubjedt; for, i f he chufe, he may divorce this wife and return
to his own country.
If a divorced woman he defirous of removing with her child to a
place which is not the place of her nativity, but in which her marriage
contract was executed, fhe is not at liberty to do it. This is
8 demonflrated
demonflrated by Kadooree in his compendium, and alfo accords with
what is related in the Mabfoot.. T h e Jama Sagheer fays that fhe may
take her child thither, becaufe where a marriage contract is executed
in any place, it occafions all the ordinances thereof to exift and have
force in that place, in the fame manner as fale amounts to a delivery of
the article fold in the place of fale; and a woman’ s right to the care
of her children is one of the ordinances of marriage, wherefore fhe is
entitled to'keep her child in the place where fhe waS married, although
fhe be not a native o f that place. The principle upon which the Mabfoot
proceeds in this cafe is, that the execution of a contract of marriage
in a plaee merely o f cafual refidence, (fuch as the ftage o f a
journey,) does not conftitute it a home, according to general ufage,
and this is the better opinion. In fhort, to the propriety o f the woman
carrying her child from one place to another, two points are ef-
fentiafly requifite,— one, that fhe be a native of the place to-which fhe.
gojpg and the other, that her marriage contract has been there executed;
this, however, means only where the places are confderably
difant; but i f they be fo near that the father may go to fee his child
and return the fame night, there.is no objection to the wife going to
the other place with the child, and there remaining; and this,,
whatever be the fize or degree o f the places, whether cities or v illages,
nor is there any objection to her removing from the village to-
the city or chief town of a diflridt, as this is in no- refpeft injurious to
the father, and is advantageous to the child, fince he will thereby become
known and acquainted with the people o f the pl acebut the reverfe
[that is, her removal from the city to a village would be injurious
to the child, as he would thereby be liable to acquire the low
manners and mean fentimentsof villagers; wherefore a woman is not
at liberty to carry her child from a city to a village.
C H A P .