X. According to some of the Learned, it is only the muharam, LECTURE or relations within the prohibited degrees, that are entitled to raise the question before the Judge ;* but according to others, there is no difference between muharam and other guardians in this respect; so that the son of a paternal uncle and the like are equally entitled to raise the question; and this opinion is sound. But the power does not belong to mere maternal relatives, and is confined exclusively to the asabah, or agnates.-Fatáwá Alamgírí, vol. i, p. 412. -B. Dig., page 68. CCXL. The delay of a guardian to sue for Principle. a separation does not annul his right of cancellation, even though it were prolonged till the woman gives birth to a child. But after the woman has actually borne a child to her husband, the guardians have no longer the right to cancel the marriage.—Ibid. CCXLI. When a woman has married her- Principle. self to a man who is not her equal, and one of her guardians has given his consent, it is no longer in the power of that guardian, or of any other equal to or below him, to cancel the marriage; but one superior to him may still do so. The rule is the same when one of the guardians has contracted her with her consent.-Fatáwá Alamgírí, vol. i, page 412.-B. Dig., page 69. CCXLII. If a woman should marry for less Principle. than her proper dower, the guardian may object till the full amount of the dower is made up, or he may separate her from her husband; and when the separation takes place before consummation, she is not entitled to any part of the dower; but if it When a woman has married herself to a man not her equal without the consent of her guardian, and the guardian takes possession of the dower and provides her jihaz, this amounts to consent and acquiescence upon his part; and if he were only to take possession of the dower without providing the jihaz though there is a difference of opinion on the point, yet, according to the sounder view, that would still be consent on his part, and acquiescence in the contract.-Fatáwá Alamgírí, vol. i, p. 412.-B. Dig., page 68. LECTURE should take place after consummation, she would X. be entitled to the full amount specified. So also if one of the parties should die before a separation. It is to be observed that this separation can be effected only before a Judge, and that until the Judge has pronounced a decree for a separation, the case admits of repudiation in the ordinary form, or by Zihar or I'lá, and that the right of inheritance remains in full force.-Fatáwá Alamgírí, vol. i, page. 414.-B. Dig., pages 71 & 72. Agency in Agents in matrimony are persons employed and authormarriage. ized by the parties concerned to enter into contracts of marriage on their behalf, and the power so delegated is termed vikát-ba-nikáh* (agency in marriage). Principle. Principle. Principle. CCXLIII. A marriage may be contracted by or through an agent or agents.† CCXLIV. A marriage agent may be validly appointed without witnesses; though the contract entered into or effected by or through him is required to be witnessed. CCXLV. When two agents are appointed by a man or woman to contract him or her in marriage, and one of the two enters into a contract, it is not lawful.-Fatáwá Alamgírí, vol. i, pag 417.-B. Dig., page 83. ANNOTATIONS. ccxliv. The appointment of an agent for marriage is valid without witnesses, though their presence is a necessary condition to the contract.-Fatáwá Alamgírí, vol. i, page 415.-B. Dig., page 76. *Hamilton's Hidayah, vol. i, page 116. † Proposal of marriage may be made by means of agency.-Macn. M. L., Chap. VII, Princ. 6. X. CCXLVI. If an agent act in contravention of his LECTURE instructions, the act is invalid if it is not approved by his principal, or if it is not for the better (n). Principle. tion. (n.) A man directs an agent to marry him to a white Illustrawoman, and he marries him to one that is black, or vice versâ, the contract is not valid; but it should be valid if the direction were for a blind woman, and the agent should marry him to one having sight.* A man directs another to marry him to one woman, and he marries him to two women by one contract, the principal is not bound as to either. But if he should allow the marriage as to both or either, the marriage so allowed would become operative. And if there had been two distinct contracts, the first would be binding, and the second suspended on his sanction. If an agent be appointed to marry a man to a particular woman, and he marries him to that woman and another with her, the marriage is valid as to the former; and if the agent were appointed to marry him to two women in a contract, and he should marry him to only one, the marriage would be lawful.* If a man commission another, as his agent, to procure him a wife, and the agent should contract him to two women, by one declaration,† his marriage is not valid with either, for, being unlawful with both, on account of its contradicting the tenor of the commission with which he was charged, and unestablished with either, on account of unspecified priority, a separation from both must necessarily ensue. Hidayah, vol. i, page 120. CCXLVII. Unless especially empowered, an Principle. agent cannot marry his own principal to himself or herself, nor to any of his or her own relations (o). (0.) If a woman give authority to a man to contract her in marriage with himself, and he accordingly execute the contract in the presence of two witnesses, it is lawful.Hidayah, vol. i, page 116. * Fatáwá Alamgírí, vol. i, pp. 416, 417.-B. Dig., pp. 78 & 79. That is to say, by one contract. LECTURE X. Principle. Principle. (o.) A man appoints a woman his agent to contract him A woman appoints a man to marry her to himself, and A man directs another to contract him in marriage, When an agent on the part of a woman marries her to his own father or son, the marriage is not lawful according to Abú Hanífah. And if the son be a child, it is unlawful without any difference of opinion.—Ibid. CCXLVIII. When a marriage agent on the part of a woman contracts her to a person who is not her equal, the marriage is unlawful* according to all opinion. But if the party be her equal, though blind or lame, or a boy, or lunatic, the marriage is lawful. So also even though he should be an eunuch or impotent. Ibid. CCXLIX. When a man who has already four wives, appoints an agent to marry him to a woman, the appointment is to be regarded as having reference * See however ante, pages 299 & 300. X. to a time when it can be lawfully exercised,-as for LECTURE instance after he may absolutely repudiate one of his wives.* CCL. When a woman, after appointing an agent Principle. to contract her in marriage, makes a contract for herself, this is a discharge of the agent from his office whether he be made aware of the fact or not. But when formally discharged, his functions do not cease till he becomes acquainted with the fact, and if he should exercise them in the meantime by contracting her in marriage, the contract would be lawful.* CCLI. If the agent were appointed by a man, Principle. the appointment having reference to a particular woman, and the man should himself marry the mother or daughter of the woman, the agent would be discharged from his office.* CCLII. A marriage agent cannot delegate his Principle. authority to another; but if he should do so, and the delegate should make a contract in the presence of the original agent, it would be lawful.* * CCLIII. When a woman has appointed a woman Principle. to marry her, and has said: "whatever thing you may do is lawful," the agent may lawfully appoint another to contract her in marriage, and if death were imminent, and he should bequeath the agency to another, and the second agent should contract her in marriage after the death of the first, the contract would be lawful.* CCLIV. Subject to the approval of the marrying Principle. parties, a marriage contract may be entered into by a fazúlí or unauthorized person. The marriage so * Fatáwá Alamgírí, vol. i, pp. 420 & 421.-B. Dig., pp. 83 & 84. |