. 53 M A R R I A G E . B o o k II.
recited above, becaufe there the intention of the yower goes only
to- exprels that he would not introduce another wife to the prejudice
of hep right of KiJfm; but her right of Kijfm * is , annihilated by
divorce.
Four wives
allowed to
freemen;
I t is lawful for a freeman to marry four wives, whether free or
flaves: but it is not lawful for him to marry more than four, becaufe
G o d has- commanded in the K o r a n , laying “ Y e m a y , m a r r y
“ w h a t s o e v e r w o m e n a r e .a g r e e a b l e t o y o u , t w o , t h r e e ,
o r f o u r , ” and the numbers being thus exprefsly mentioned, any
beyond what is there fpecified would be unlawful.^-iS^fl/« alledges a
man cannot lawfully marry more than one woman of the ftefcription
o f flaves, from his tenet as above recited, that “ the marriage, ffr e e -
“ men with jla vesis allowable -only from necej]ity\’ the text.already
quoted, is, however, in proof, agaiiift him, fince th e te rm Nijfa
\womeri\ applies equally to free women and to flaves.
and two to
Haves.
I t is unlawful for a man who is a Have to marry more than two
women; Malik maintains that it is lawful for a Have to marry as
many womeh as a freeman, he holding it as a principle, that a Have,
with refpect to marriage, is in every particular the lame as a free
perfon, infomuch that (according to him) a Have is authorized to
marry without his proprietor’ s confent.— T h e argument o f our doctors,
in this cafe, is that flavery operates to the privation of one half o f the
natural privileges and enjoyments, and the legality of four wives in
marriage being of this defcription, it follows that the privilege of a
Have extends to the poffelfion of two wives only, in order that the
dignity-of freedom may be duly fupported.
A man,
having the
full number
If a man, having four wives, repudiate one o f them, it is unlawful
for him to marry any other woman during the term of that
* Impartiality in cohabitation with his wives. See Chap. VI.
wife’s
wife’s Edit, whether the divorce, under which fire Rands repudiated,
be teverfible or complete. ShafeVs do&riné differs from this. His
j-eafojjino-, and the reply to it, are the fame as in the cafe of a man'
marrying a lifter of.his wifé during the term of the latter’s Edit.
A man may lawfully marry, a woman pregnant by whore'dom,
but he muft not cohabit with her until after her delivery.— This is
the doftrine of Haneefa and Mohammed.— Aboo T o o ff lays that a marriage
made under fuch a circumftatice is invalid : if, however, the
defcent of the Foetus be known and eftablifhed, the marriage is
null, according to all the doftors'.— The argument upon which Aboo
Toofaf fupports his opinion as above, is, that the illegality of the
marriage, in cafes where the parentage: of the Foetus is eftablifhed,
originates purely in a principle of tendernefs towards the Foetus, and a
Foetus is an ohjedt of this tendernefs, although it be begot in adultery,
fince it is innocent of any offence; whence procuring the abortion of
it is illegal ; marriage, therefore, with a woman pregnant by adultery
is invalid, equally with one where the parentage of the Foetus is af-
certained, and for the fame reafon. Our doctors, upon this point,
argue that the woman is lawful in matrimony, on the authority of
the facred writings, the K o r a n faying “ A l l w o m e n a r e l a w -
“ r c i . t o y o u , e x c e p t i n g t h o s e w i t h i n t h e p r o h i b i t e d d e -
“ g r é é s “; ” and the prohibition o f cohabitation until after delivery, is
merely on account of the impropriety of fowing feed in a foil already
impregnated by another, a prohibition which occurs in the. traditions.
With refpeft to what Aboo Toofcf alledges, that “ the illegality o f the
“ marriage in cafes where the parentage of the Foetus is eftablifhed,
“ originates purely in a principle of tendernefs towards the Foetus, "—
it is altogether unfounded, becaufe the nullity of.the marriage in that
cafe originates in a regard for the right, not of the Foetus, but of the
father. .
I t is unlawful to
V ol, I,
marry a woman taken in war, being pregnant at
N the
o f wives a lio
wed, can not
marry during
the E d i t o f
one o f them.
A man may
marry a woman
pregnant
by w h o r e d om ;
but not a
c a p t i v e taken
in that flats.