LECTURE contracted may be sanctioned or ratified by word, or by deed (p).

X.

Principle.

(p.) Every contract issuing from, or initiated by, a fazúlí, for which there is a person competent to accept it, whether the acceptor be another fazúlí, or an agent, or principal, is contracted subject to approval, and the other side of the contract may stand over for acceptance during the meeting and no longer.-Fatáwá Alamgírí, vol. i, page 421.-B. Dig., page 85.

Our authorities* are agreed, that

CCLV. One person can act in a marriage as agent for both parties, or as guardian for both parties, or as guardian on one side and principal on the other, or as agent one side and principal on the other, or guardian on one side and agent on the other.†

But can one person act on both sides as a fazúlí, that is, without having any authority, or as a guardian on one side and fazúlí on the other, or principal on one side and fazúlí on the other, or as agent on one side and fazúlí on the other, so as to make a contract that would be dependent on subsequent sanction? According to Abú Hanifah and Muhammad, this cannot be done.†

*Say the Compilers of Fatáwá Alamgírí.

† Fatáwá Alamgírí, vol. i, p. 421.-B. Dig., p. 84.

LECTURE XI.

ON DOWER.

nary

DOWER is considered by some lawyers to be an effect of Prelimithe marriage contract, imposed on the husband by the law Remarks. as a mark of respect for the subject of the contract,-the wife; while others consider that it is in exchange for the usufruct of the wife: in other words, a consideration for the carnal use of the woman and its payment is necessary, as upon the provision of a support to the wife depends the permanency of the matrimonial connection. Thus, it is indispensable & fortiori, so much so, that if it were not mentioned in the marriage contract, it would be still incumbent on the husband, as the law will presume it by virtue of the contract itself, and award it upon demand being made by the wife. In such case, the amount of dower will be to the extent of the dowers of the women of her rank and of the ladies of her father's family. Special beauty or accomplishments may, however, be pleaded for recovering a larger award than the customary dower, where the amount of dower is not mentioned in the contract. There is no limit to the amount of dower-it may be to a very large amount considering the position and circumstance of the bridegroom, but its minimum is never less than ten dirms; so where it is fixed at a lesser amount, the law will augment it up to ten dirms. The dower need not invariably be in currency, or even in metal, every thing, except carrion, blood, wine and hog,† also the bridegroom's own labour if he is a free man, being held by the law to be a good dower.

Dower is generally divided into two parts, termed― Muajjal (prompt,) and Mowajjal (deferred). The Muajjal

* Hidayah, vol. i, page 113.

†These are no property with the Muhammadans.

XI.

LECTURE portion is exigible on entering into the contract, while the Mowajjal part of the dower is payable upon dissolution of the contract. Although the first part is payable, and is sometimes paid, at the time the contract is entered into, yet it has been the general practice (at least in this country,) to leave it unpaid, and so like an on-demand obligation it remains due at all times-the wife's right to the same not being extinguished by lapse of time. The wife's (or her guardian's) object of leaving the exigible part of the dower unrealized, seems to be that there may always exist a valid guarantee for the good treatment to her by her husband. The women of the respectable classes reserve their right and power to demand their exigible dowers till such time as occasion should require the exercise thereof. The custom of fixing heavy dowers, generally beyond the husband's means, especially in India, seems to be based upon the intention of checking the husband from ill-treating his wife, and, above all, from his marrying another woman, as also from wrongfully or causelessly divorcing the former.

Dower defined.

Dower (mahr) is an effect of the marriage contract, and imposed by the law on the husband as a token of respect for its subject-the woman-as well as a consideration for the usufruct.t

"A marriage," says the author of the Hidayah, "is valid, although no mention be made of the dower by the contracting parties, because the term nikáh (marriage), in its literal sense, signifies a contract of union, which is fully accomplished by the junction of a man and woman; moreover, the payment of dower is enjoined by the law, merely as a token of respect for its object (the woman), wherefore the mention of it is not absolutely essential to the validity of a marriage: and, for the same reason, a marriage is also valid, although the man were to engage in the contract on the special condition that there should be no dower."-Hidáyah, vol. i, page 122.

* It is also known by Sadák, Nahláh, or, Ukr.'-Vide Ináyah, vol. ii,

page 52.

† Vide Hidayah, vol. ii, p. 58.—B. Dig., page 91.

Nevertheless,

LECTURE
XI.

CCLVI. Dower is so necessary to the marriage, that if it was not mentioned in the contract, the law Principle. will presume it by virtue of the contract itself.*

CCLVII. Where marriage is contracted without Principle. specification of the kind or amount of dower, or without mentioning whether dower should or should not be given, or with the express condition of giving no dower, there, upon demand being made after consummation of the marriage, or after the husband's death, the dower, which is termed the 'mahr-i-misl,' that is the dower like that of the woman's equals, should be awarded and paid.†

CCLVIII. The mahr-i-misl, or proper dower, of Principle. woman is to be determined with reference to the family of her father, when on a footing of equality with her in age, beauty, city, understanding, religion and virginity (a).

ANNOTATIONS.

cclvi. Dower is a consideration for the carnal use of the woman, the payment of which is necessary of course; and upon the provision of a support to the wife depends the permanency of the matrimonial connection; and this, therefore, is indispensable â fortiori.-Hidayah, vol. i, page 113.

celvi & cclvii. The dower that is due by the contract itself is termed 'mahr-i-misl,' which means literally dower of the like,' or, 'dower of the woman's equals.'-Ináyah, vol. ii, page 52.-B. Dig., page 91.

* Fatáwá Alamgírí, vol. i, page 428.-B. Dig., page 95 et seq.

Where no amount of dower has been specified, the woman is entitled to receive a sum equal to the average rate of dower granted to the females of her father's family.-Macn. M. L., Chap. VII, Princ. 21.

The learned Translator of the Hidayah has rendered the term 'Mahr-iMisl' by proper dower,' and Mr. Baillie has adopted the same in his translation of the Fatáwá Alamgiri.

LECTURE
XI.

Principle.

(a.) In regulating the proper dower of a woman, attention must be paid to her equality with the women from whose dowers the rule is to be taken, in point of age, beauty, fortune, understanding, and virtue; because it varies according to any difference in all these circumstances; and, in like manner, it differs according to place of residence, or time, (that is to say, times of trouble and confusion, as opposed to times of tranquillity;)—and the Learned in the law have observed that equality is also to be regarded in point of virginity, because the dower is different according as the woman may be a virgin or otherwise.-Hidayah vol. i, pages 148, 149.

The mahr-i-misl, or proper dower, of any woman is to be regulated, in its amount or value, by that of the dower of her paternal relatious, such as her paternal sisters or aunts, or the daughters of her paternal uncles, and so forth, according to a precept of Ibnu Musúd,—“ To the woman belongs such a dower as is usually assigned to her female paternal relatives:" moreover, men are accounted of the class of their paternal tribe, and the value of a thing cannot be estimated but by attending to the value set upon its class.-Hidayah, vol. i, page 148.

A woman's proper dower is not to be estimated by the dower of her mother or her maternal aunt, where they are not descended of her father's family, on account of the precept of Ibnu Musúd already recorded: yet if her mother should be descended of her father's family, (being, for instance, the daughter of his paternal uncle,) in this case a judgment may be formed from her dower, as being descended from the family of the father.-Ibid.

CCLIX. Mahr-i-misl, or proper dower, is also ordained by the law for the women who are married in exchange for one and another (b).

ANNOTATIONS.

cclix. When one man gives his daughter or sister in marriage to another, on condition that the other will give him his daughter or sister in return, the right to the person of each woman being the dower of the other, the contracts are effected; but the condition is void, and each woman is entitled to her proper dower. This is what is termed a 'Shaghár marriage.'—Ináyahı, vol. ii, p. 63.—B. Dig., p. 94.