LECTURE this case is, that when a person who takes the whole XV. of the inheritance is in straitened circumstances, his

inability is the same as death, and being as it were dead, the maintenance is cast on the remaining relatives in the same proportions as they would be entitled to in the inheritance of the person to be maintained, if the other were not in existence; and that when one who takes only a part of the inheritance is in straitened circumstances, he is to be treated as if he were dead, and the maintenance is cast on the others, according to the shares of the inheritance to which they would be entitled if they should succeed togetherwith him.*

It is to be observed, however, that—

DXXXVIII. To the obligation of furnishing maintenance to a poor relation, the capability of inheritance only is a condition, and not the prior or more immediate right.

Thus if a poor man have a rich maternal aunt, and also a rich paternal uncle's son, his maintenance rests upon the former in preference to the latter, although the latter would inherit of him in preference to the former, for this reason, that a maternal aunt is within the prohibited degrees, whereas a cousin-german is not.-Hidayah, vol. i, page 414.

Consequently,

DXXXIX. The maintenance of a relation within the prohibited degrees excepting a wife, both parents, grandfathers and grandmothers, a child and son's

ANNOTATIONS.

dxxxix. Maintenance is not due where there is a difference of religion, excepting to a wife, both parents, grandfathers and grandmothers a child and the child of a son, as already mentioned.— Vide Fatáwá Alamgirí, vol. i, page 759.—B. Dig., page 466.

* Fatáwá Alamgirí, vol. i, page 757.-B. Dig., pp. 463–465.

upon

child (as already mentioned) is not incumbent
his heirs, if they be of a different religion, because,
in this case, they are incapable of inheriting from
him, which is the condition of the obligation.

There is no obligation upon a Christian to provide maintenance to his brother, being a Mussalmán; neither is a Mussalmán under any obligation to provide for the maintenance of his brother, being a Christian; because (according to what appears in the sacred text) maintenance is connected with inheritance; and as a Mussalmán and infidel cannot inherit of each other, it follows that the maintenance of either is not incumbent upon the other.-Hidayah, vol. i, page 412.

A Christian is not liable for the support of his Muslim brother, nor a Muslim liable for the maintenance of his Christian brother.-Fatáwá Alamgírí, vol. i, page 759.B. Dig., page 466.

DXL. If the judge (Kází) decree maintenance to children, or to parents, or to relations, within the prohibited degrees, and some time should elapse without their receiving any, their right to mainte

nance ceases.

Because it is due only so far as may suffice, according to their necessity, and they being able to suffer a considerable portion of time to pass without demanding or receiving it, it is evident that they have a sufficiency, and are under no necessity of seeking a maintenance from others: contrary to where the Kází decrees a maintenance to a wife, and a space of time elapses without her receiving any, for her right to maintenance does not cease on account of her independence, because it is her due, whether she be rich or poor.-Hidáyah, vol. i, page 417.

What has been observed on this occasion applies to cases only in which the Kází has not authorized the parties to provide themselves a maintenance upon the absentee's credit.-Ibid.

DXLI. But where the Kází has so authorized them, their right to maintenance does not cease in

LECTURE
XV.

LECTURE consequence of a length of time (m) passing without XV. their receiving any (n).

(m.) The time here meant is any term beyond a month; and if the time elapsed be short of that term, maintenance does not cease.-Hidáyah, vol. i, page 417.

(n.) Because the authority of the Kází is universal, and hence his order to provide a maintenance upon credit is equal to that of the absentee himself, wherefore the proportion of maintenance for the time so elapsed is a debt upon the absentee, and does not cease from that circumstance.Ibid.

LECTURE XVI.

ON MINORITY AND GUARDIANSHIP.

DXLII. A person becomes an adult on the expi- Principle. ration of the fifteenth year of his or her age; but if any of the symptoms of puberty appear at an earlier age majority commences therewith (a).

(a.) The puberty of a boy is established by his becoming subject to nocturnal emission, his impregnating a woman, or emitting in the act of coition; and if none of these be known to exist his puberty is not established, until he have completed his eighteenth year. Puberty of a girl is established by menstruation, nocturnal emission, or pregnancy; and if none of these has taken place, her puberty is established on the completion of her seventeenth year. What is here advanced is according to Abú Hanífah. The two disciples (Abú Yusuf and Muhammad) maintain that upon a boy's as well as a girl's completing the fifteenth year, they are to be declared adult. There is also one report of Abú Hanífah to the same effect.-Vide Hidayah, vol. iii, pages 482 & 483.

The opinion of the two disciples corroborated by the latter report from their master, as well as by the opinion of Sháfií and others is taken to be the law as respects the second point; and there is no difference of opinion with respect to the first.

It is expressly laid down in the Durr-ul-Mukhtar that 'the puberty of a boy is (established) by his (becoming subject to) nocturnal emission, his impregnating a woman, or emitting in the act of coition; and that of a girl, by nocturnal emission, menstruation, or pregnancy. But if none of these be known to exist in them, then until they complete the fifteenth year; and according to this decision is given.-Durr-ul-Mukhtár, pages 685 & 686.

LECTURE
XVI.

Principle.

So also in the Jámi-ur-Ramúz:-" The majority of a boy is established upon (his being subject to) nocturnal emission, or his impregnating a woman, or emitting in the act of coition; and that of a girl, upon nocturnal emission, menstruation or pregnancy; but if none of these is found in them, then upon their completing the fifteenth year. According to this decision is given*.-Jámi-ur-Ramúz, vol. iv, page 721.

It is to be observed that the earliest age (for the appearance of the symptoms) of puberty with respect to a boy is twelve years, and with respect to a girl is nine years.tHidayah, vol. iii, page 483.

DXLIII. When a boy or girl approaches the age of puberty, and they declare themselves adult, and

ANNOTATIONS.

dxliii. When a boy or girl approaches the age of puberty, and they declare themselves adult, their declaration must be credited, and they become subject to all the rules affecting adults, because the attainment of puberty is a matter which can only be ascertained by their testimony; and consequently when they notify it, their notification must be credited in the same manner as the declaration of a woman with respect to her courses.-Hidayah, vol. iii, page 483.

The author of the Hidayah also is of this opinion, as it is manifest from his citing, as above, the opinion of the two disciples after that of their master, Abú Hanifah. See the Introductory Discourse, page 42. Annotations.

Sir William Macnaghten, however, says: "All persons, whether male or female, are considered minors, until after the expiration of the sixteenth year, unless symptoms of puberty appear at an earlier period." (Macn. M. L., Chap. viii, Princ. 1.) But as he does not show upon what authority he was warranted in fixing minority until after the expiration of the sixteenth year, and as there seems to be no authority to support his dictum, it must be taken to be erroneous, and could not be adopted in the face of the paramount authorities above cited; more especially when the precedent quoted by the learned writer himself in the second part of his work fixes minority to the end of the fifteenth, and not the sixteenth, year. The essential part of the precedent just alluded to is as follows:-" If a girl exhibit certain signs of womanhood at the age of nine, ten, eleven, or up to fourteen years old, she is, in the language of the law, denominated bálighah bil alámat' or adult by (symptoms of) puberty. Should she exhibit none of these signs up to her fourteenth year yet on her attaining the age of fifteen years, she will be deemed an adult, and in the language of the law, she will be termed 'balighah ba-sin' or adult by (the year of) majority."-Macn. Prec., M. L., Chap. vi, Case 17.

The earliest age of puberty with respect to a boy is twelve years, and with respect to a girl nine years.-Durr-ul-Mukhtár, page 686.