Puniftunentis
incurred by
connexion
with the Have
o f a brother.
Connexion
with a woman
■ married by
miftake does
not occafion
punilhment.
I f a mail have carnal connexion with the bondmaid of his
brother, or of his uncle, he incurs punilhment, although he lhould
plead that he had conceived her to be lawful to him, becaufe between
fuch relations no community of intereft exifls. Apd the law is-the
fame with refpedt to the female Haves of all other relations within the
prohibited degrees, excepting thofe who are related to the man within
the parental degree., (fuch as his father or., his fon,') becaufe between
him and thofe prohibited relations no community of intereft
exifts.
If a man engage in a contradt of marriage with a woman, and
another woman be fent to him * , the female relations declaring her
to be the woman married to him by fuch contradt, and he have carnal
communication with that woman, he does not incur any punilhment;
but yet he mult pay the yvorpan her dower, becaufe Alee once palled
a decree to this effedt;— and he alfo fubjoined, in his decree, that-
the woman lhould obferve an E d it:— moreover, the man has proceeded
upon apparent proof, namely, the information of the Woman’s
female relations,- with refpedt to the fubjedt of his error, fince men
can have no perfonal knowledge of or acquaintance with their wives
prior to the matrimonial engagement; and hence the man in this
cafe is the fame as a perfon adting under a deception. And the.
accufer of this perfon does not incur the punilhment of Hander,
becaufe pofleflion by marriage, requifite to legalize generation,
is in no relpedt eltablifhed. There is an opinion recorded from
Aboo Yoofaf, that the accufer is liable to punilhment, becaufe the
carnal conjunction is to all appearance legal, with refpedt to the man,
according to the information of the woman’ s female relations, and of
courfe his accufer becomes liable to punilhment, as a decree mult be
founded upon what is apparent.
* It is almoft unneceffary to.remark that, 'from the nature of the Muffulman cuftoms, a
man can never be fuppofed to have feen his wife until after marriage,—the woman being
utterly excluded from the light of all men except her relations within the prohibited degrees.
If
I f a man have carnal connexion with a woman whom he finds in
his own bed, punilhment is incurred by him, becaufe there can be no
error where he pafles any length of time in the company of his wife,
and thence his apprehenfion of this woman being his wife, from the
circumflancc of his finding her in bed, is not regarded, fo as to prevent
punilhmeiit:— the reafon of this is that fometimes a relation
of the wife, refiding in the houfe with her, may fleep upon her bed.
And the law is the lame where the man is blind, becaufe it is always
in his power to alk and difeover who the woman i s ; and he may
alfo difeover this by the found of her voice. But yet if he invite the
woman to the'aft, and the content, fignifying that “ Ihe is his
“ wife,”— and he copulate with her, in this cafe he does not incur
punilhment, as he is deceived by the woman’s declaration and behaviour.
If a man marry a woman whom it is not lawful for him to Connexion
marry, and afterwards have carnal connexion with her, he does not under amun"
incur punilhment, according to Haneefa; but if he be at the time l*wlal , marr
*ii v 1 • 1 X nage does not
aware of illegality, he is to be corrected by a Tazeer, or diferetionary induce pu-
corredtion. The two difciples and Shtfei have faid that he is liable mfllment-
to punilhment, when he marries the woman, being aware of the
illegality, becaufe, as the con traft has not been executed in regard to
its' proper fubjeft, it is of courfe void ; for here the woman is not a
proper fubjeft of marriage, bpcaufe the proper fuhjeft of marriage, or
of any other deed, is a thing which is a proper fubjedt of the effchls
of fuch deed ; now one of the effedts of marriage is the legalizing of
generation; but as the'Woman is among thofe who are prohibited to
the man, the contradt of .marriage with her is confequently nugatory,
in the fame manner as a contradt of marriage, between man, and man.
The argument of Haneefa is that the contradt has taken place in regard
to its proper fubjedt, as the1 woman is a proper fubjedt of marriage, becaufe
the proper fubjedt of any deed is a thing which admits of the
ends intended being obtained from i t ; now the end of marriage is
V o r. II. E the