IX.

CCIX. It is not lawful for an apostate to marry LECTURE a woman who has apostatized, nor a female Musalmán, nor an infidel by origin; and, in like manner, Principle. it is not lawful for a female apostate to marry with any one. The marriage of a Muslimah with an apostate, or with a kitábí, is unlawful.-Fatáwá Alamgírí, vol. i, page 397.-B. Dig., page 42.

CCX. It is unlawful for a free man to marry a Principle. fifth wife, during the existence of his four married wives.

obligatory,

misery.

CCXI. Marriage is obligatory on the person Marriagewhose passion is ungovernable (w), it is a duty a duty, or to him whose condition is moderate (r); but it is a source of abominable to the person to whom there is an apprehension of its being a source of annoyance, or misery.-Durr-ul-Mukhtár, page 196.

ANNOTATIONS.

Kurán: "Marry not a woman of the Polytheists until she embrace the faith."-Hidayah, vol. i, pages 84, 85.

It is not lawful to marry fire-worshippers (Majúseahs), nor idolatresses, and in this respect there is no difference between free women and slaves. Among the worshippers of idols are included the worshipper of the Sun and Stars and images which they hold in reverence, and persons of every creed by belief in which one is deemed an infidel (Káfir).— Fatáwá Alamgírí, vol. i, page 396.-B. Dig., page 40.

CCX.

When a free man has married five wives in succession, the marriage of the four first is lawful, but the marriage of the fifth is unlawful; and if he marry five in one contract, the marriage of the whole is vitiated.-Fatáwá Alamgírí, vol. i, page 391.-B. Dig., page 31.

ccxi. Marriage is a duty for the person whose constitution is moderate, but obligatory on him or her whose passion is immoderate or ungovernable, while it is abominable for the person to whom there is an apprehension of its being a source of annoyance or bringing on misery.*-Fatáwá Alamgírí, vol. i, page 377.

*Mr. Baillie appears to have omitted to translate this portion of the Fatáwá Alamgirí.

LECTURE (w.)

IX.

Explanation.

Whose passion is ungovernable,'-that is, whose passion is so immoderate that, if he did not marry, he would be sure to commit adultery or fornication. But even in such state, if the man is unable to pay the dower, or support his wife, he will not commit a sin if he does not marry.-Durr-ul-Mnkhtár, page 196.

(x.) Whose condition is moderate,'-that is, who is able to cohabit with a woman, to pay dower, and support (his wife). Being in such state, if he fail to marry, he will commit a sin;-on the other hand, if he does (marry), with the object of begetting children and not committing adul tery or fornication, he will merit reward in the after life.Ibid.

Principle. CCXII. A free man is allowed to have up to four wives, and no more while all four wives are living.*

Principle.

CCXIII. If a man having four wives repudiate one of them, still it is unlawful for him to marry any other woman during the term of that wife's iddat or probation.-Vide Shah-ul-vikáyah, vol. ii, p. 331.

ANNOTATIONS.

ccii, ccxiii. It is lawful for a free man† to marry four wives, whether free or slaves; but it is not lawful for him to marry more than four, because God has commanded in the Kurán, saying: "Ye may marry whatsoever women are agreeable to you, two, three, or four," and the numbers being thus expressly mentioned, any beyond what is there specified would be unlawful.-Hidayah, vol. i, page 88.

It is not lawful for any man to have more than four wives at the same time, and it is not lawful for a slave to marry more than two. A free man may marry four women whether they be slave or free. When a freeman has married five wives in succession, the marriage of the four first is lawful, but the marriage of the fifth is unlawful, and if he marry five in one contract, the marriage of the whole is vitiated.-Fatáwá Alamgirí, vol. i, page 391.-B. Dig., page 31.

* A free man may have four wives, but a slave can have two only. Macn. M. L., Chap. VII, Princ. 8.

It is unlawful for a man who is a slave to marry more than two women Hidayah, vol. i, page 88.

per

IX.

CCXIV. Among the Sunnís, the marriage is LECTURE manently contracted;* such marriages as mutah or usufructuary, and mawakkah or temporary, and the Principle. like, not being allowed by their law (y).

(y.) A‘nikáh-i-mutat (mutah)', or usufructuary marriage, is bátil or void, and not susceptible of repudiation. This is a mutat when a man says to a woman free from any cause of prohibition, "I will take the enjoyment of you for such a time," as ten days for instance, or " for days," or "give me the enjoyment of your person for days," or "ten days," or without any mention of days "for so much. "-Fatáwá Alamgírí, vol. i, page 398.—B. Dig., page 18.

CCXV. The mawakkat or mawakkah (tempo- Principle. rary marriage) is void, and it makes no difference whether the time be long or short, according to the most valid opinions, nor whether it be known or unknown (z).f-Fatáwá Alamgirí, vol. i, page 398.B. Dig., page 18.

(z.) A 'nikáh-i-mutah,' or usufructuary marriage, where a man says to a woman, "I will take the use of you for such a time for so much," is void, all the Companions having agreed in the illegality of it.-Hidayah, vol. i, page 91.

(2.) Anikáh-i-mawakkat,' or temporary marriagewhere a man marries a woman under an engagement of ten days, (for instance,) in the presence of two witnesses,is null. The argument of our doctors is, that a temporary marriage is of the same nature with a usufructuary marriage; and in all contracts, regard is had to the sense rather than to the letter, wherefore a temporary marriage is null as well as a usufructuary marriage, whether the period specified be short or long; because the principle on which a contract of marriage falls under the description of Mutah, or usufructuary, is its containing a specification of time;

*Upon the provision of a support to the wife depends the permanency of the matrimonial connection.-Hidáyah, vol. i, page 113.

†The reason assigned for this is, that it can be for no other purpose than mere enjoyment, and therefore falls within the prohibition of mutah marriages, from which they differ only in the words of constitution.-Kifayah, vol. ii, page 30.-B. Dig., page 18.

LECTURE and the same is found in a Nikkah-i-mawakkat or temporary marriage.-Hidáyah, vol. i, page 92.

IX.

Principle.

Principle.

CCXVI. Besides the formal marriage already described, marriage between a man and woman may be presumed from their continually living together and treating each other as husband and wife (such as by kissing, embracing, and so forth) without any direct proof of the formality or ceremony of marriage; provided the connection were not incestuous or such as marriage ought not to be presumed.* (See ante, pages 121 & 126; see also Parentage.)

CCXVII. It is laudable or proper to make a publicity of marriage, and to read the khutbah before the contract takes place, and it is proper that the contract be caused to be entered into by a sensible man in a masjid on a Friday in the presence of competent witnesses, and that the bridegroom should once see the bride previous to the marriage.— Durr-ul-Mukhtár, page 196.

The tahmidt should accompany or precede the declaration as well as the acceptance; that is, the

ANNOTATIONS.

ccxvi. When a person has seen a man and woman dwelling in the same house (bayit), and behaving familiarly with each other in the manner of married persons, it is lawful for him to testify that she is his wife, in the same way as when he has seen a specific thing in the hands of another.-Fatáwá Alamgírí.-B. Dig., page 421.

The person who has seen a man and woman dwelling in the same house (or room), and their treatment to each other is that of a husband and wife, (such as embracing and kissing each other), should testify before the Kází (Judge) that the woman is the wife of the man.—Jámi-urRamúz, vol. iv, page 596.

* Marriage will be presumed in the case of proved continual cohabitation, without the testimony of witnesses; but the presence of witnesses is nevertheless requisite at nuptials.-Macn. M. L., Chap. VII, Princ. 13.

†Thanking God, saying-"God be praised," and so forth.

contracting party should say-" Praise be to God, and LECTURE blessing on the Prophet of God! I have married to you IX. my daughter (named) such and such ;" and the bridegroom should say," Praise be to God, and blessing on the Prophet of God! I have accepted marrying her upon this dower." It is also laudable to read the tahmid before the reading of the Khutbah.†-Yahiyá-ul-Ulúm, Lucknow Edition, vol. ii, page 18.

The legal effects of marriage are as follow:

CCXVIII. It legalizes the mutual enjoyment of Principle. the parties in a manner permitted by law, or accord- Effects of ing to nature. It subjects the wife to the power of restraint; that is, places her in such a condition that she may be prevented from going out and showing herself in public. It imposes on the husband the obligation of mahr or dower, and of maintaining and clothing his wife. It establishes on both sides the prohibition of affinity and rights of inheritance. It obliges the husband to be just between his wives, and to have a due regard to their respective rights; while it imposes on them the duty of obedience when called to his bed, and confers on him the power of correction when they are disobedient or rebellious. It enjoins on him the propriety of associating familiarly with them with courtesy and kindness.Fatáwá Alamgirí, vol. i, page 381.-B. Dig., page 13.

* A father, or any other relation, as the case may be.

It is stated in the Madárij-un-Nabúat, that the Prophet himself read the Khutbah on the marriage of his daughter Fátimah to Alí. Hence the reading of Khutbah in marriages may be said to be a Sunnat.

A husband is at liberty to prevent his wife's parents, or other relations, or her children by a former marriage, from coming in to her, as her apartment or habitation is his property, which he may lawfully prevent any person from entering; but he cannot prohibit them from seeing and conversing with her, whenever they please.-Hidáyah, vol. i, page 402.