Cafe o f a
partnerfhip
Mokatiba,
bearing a
child to her
two matters
fuccefiively.
follows that it remains to be fo participated after the Gave has failed in
the payment of his ranfom.
m two men conftitute their partnerfhip female Gave a Mokdubb,
and one of them afterwards cohabit with her, and Gie bring forth a
child, and the cdhabiting partner claim it,— and the other partner afterwards
cohabit with her, and fhe bring forth another child, and this
other partner claim that child, and the Gave be afterwards unable to
difcharge her ranfom,— fhe, in fuch cafe, becomes an Am-Wahd^
the former partner. T h e reafon of this is, that upon one of the two
owners rft claiming a child born of her, his claim was valid, becaufe
of his right of property; and his fhare became Am-Wahd to him ex-
clufively; for a MokdtU is incapable of fhift.ng from the property of
one perfon to the property of another. Hence hts fhare alone became
Am-Walid*-, {as in the cafe of
tween two; that is to fay, if two perfons unite in granting a fadbeer
to their joint female Gave, and one of them afterwards cohabit with
her and die produce a child, and the cohabiting partner claim it,-in
fuch cafe the parentage of the child is eftablifhed in WM partner and
bis fhare alone becomes Am -W alid-,-and fo likewife in the cafe |
queGion;)— and again, upon the other-mafter claiming the fecond
child, his claim is alfo valid, as his right ot property in the Gave exifts
with regard to the appearance, becaufe-of the endurance of the con-
trad of Kit&bat. But upon the Gave proving unable to difcharge her
ranfom, the contrad of M S becomes the fame as if it had never
exifted; and it then becomes evident that the Gave is wholly an Am-
Walid, becaufe the contrad of Kitdbat, which was the obftrudion to
her fhifting from the property of one perfon to the property of another,
is annulled. Confequently, as the cohabitation of the former partner
» T h a t is to fay,'the property or quality o f being an reftriaed M U
to his ihare, and was not imparted in any refpea to the fhare of-his -co-partner. (
the literal fenfe o f the paffage as-it occurs in the Arabic verfion.) ^
was prior in point of time, fhe from that period becomes his Am-
Walid;— and he is refponfible to the other partner for half her value,
as having become proprietor of that partner’ s Glare, in virtue of the
Gave becoming wholly an Am-Walid to himfelf. In this cafe, alfo,
an half Akir [fine of treffpafs] on account of the Gave is incumbent on
the prior cohabiting partner, becaufe of his having cohabited with a
partnerfhip Gave. T h e latter cohabiting partner, on the other hand,
is refponfible for an atonement to the amount o f the complete fine; and
he rauft alfo pay the other partner the value of the fecond child, the
parentage of which is eftablifhed in him ; for he ftands as a Magroor,
as his right of property in the flave had an apparent exiftence at the .
time of his connexion with her; and the parentage of a Magroor's
child is eftabliftied in the Magroor, and it is emancipated for the value,
as has been repeatedly explained. A sj' however, it appears that this
partner, in having fuch Connexion, has adually cohabited with the
Am-Walid of another perfon, th€ whole fine is incumbent upon him,
not an h a lf fine. Either partner may, in this cafe, lawfully pay the
fine to the Mokatiba; becaufe as long as the contrad of Kitcibat continues
in force, the right of taking pofieffion of it appertains to her,
as fhe is foie * with refped to the ufe of her perfon, or the confidera-
tion for fuch ufe. But upon her proving unable to fulfil her part of
the contrad of Kitcibat, fhe muft account to the prior cohabiting partner
for what fhe has thus received, as it then becomes evident that he
is foie with refped to the ufe of her perfon. All this is according to
Haneefa. The two difciples' allege that the flave, upon claim being
laid to the firft child, becomes wholly an Am-Walid to the firft partner,
and that it is, confequently, utterly unlawful for the other
partner to have afterwards any connexion with her ; becaufe all authorities
agree that it is incumbent to make maternity -J- complete, as
* Meaning, “ Jhe has exclufive privilege w ith refpefi to the difpofal o f ”
t Arab. Jmoomeeaty from Am^ [mother.]— Am -W alid literally means mother o f a child.
Confequently Amoomeeat a l W alid fignifies the J la te o f being mother to a child
V ol. III. H h h far