LECTURE after which, if he is of ripe discretion, and may be trusted XVI. to take care of himself, he is to be set free, and allowed to go where he pleases. But if he cannot be trusted to take care of himself, the father should join him to himself, or keep him by him, and be his guardian.* Principle. Principle. Principle. DLXXII. When a female has neither father nor grandfather nor any of her asabah to take charge of her, or the asabah is profligate, it is the duty of the judge to take cognizance of her condition; and if she can be trusted to take care of herself, he should allow her to live alone, whether she be a virgin or a Sayyibah, and if not, he should place her with some female amín, or trustee, in whom he has confidence; for he is the superintendent of all Muslims.† DLXXIII. When a mother refuses to take charge of a child without hire, it may be committed to another.* DLXXIV. A boy or girl having passed the period of hizánat have no option to be with one parent in preference to the other, but must necessarily thenceforth remain in charge of the father.— Hidayah, vol. i, page 389. * Fatáwá Alamgírí, vol. i, page 730.—B. Dig., pages 434 & 435. † With regard to a female, if she be a Sayyibah, but cannot be safely left to herself, she is not to be set free, and the father ought to keep her with himself. If, however, she may be trusted to take care of herself, her father has no right to retain her, and she should be left free to reside where she pleases. If she is adult and virgin, the guardians have a right to retain her, though there should be no apprehension of her doing anything wrong, while she is of tender age. But if more advanced in years, and of ripe discretion, and chaste, they have no right to retain her, and she may reside where she pleases. When a female has neither father, nor grandfather, nor any of her asabah to take charge of her, or the asabah is profligate, it is the duty of the Judge to take cognizance of her condition; and if she can be trusted to take care of herself, he should allow her to live alone, whether she be a virgin or a Sayyibah; and if not, he should place her with some female Amin or trustee in whom he has confidence; for he is the superintendent of all Muslims.-Fatáwá Alamgirí, vol. i, page 730.-B. Dig., page 434. XVI. DLXXV. Before the completion of iddat or LECTURE dissolution of marriage, the proper place of hizánat is that where the husband and wife live, and the Principle. former cannot take away the child out of the cus- Place of tody of the latter. hizánat. DLXXVI. After completion of her iddat and Principle. separation from her husband, a woman can take her child to the place of her nativity provided the marriage had been contracted there, or it is so near from the place of separation or husband's residence that if the husband should leave the latter in the morning to visit the child he can return to his residence before night (e). ANNOTATIONS. dlxxv. Where the husband and wife are residing is the place of hizánat while the marriage subsists. So that the husband cannot leave the city where they are residing, and take the child with him out of the custody of the woman. The rule is the same with respect to a mutadda who cannot lawfully go away whether she take away her child with her or not; and the husband cannot oblige her to go.-Fatáwá Alamgírí, vol. i, page 735.—B. Dig., page 430. When a separation has taken place between a husband and wife, and her iddat has expired, she may take her child to her city if the marriage took place there. But she cannot do so if the marriage did not take place in her own city, unless the city be so near the place of separation that if the husband should leave the latter in the morning to visit the child he can return to his own house before night. Nor can she go to any other city than that in which the contract took place on any other conditions. And the same rule is applicable to different places in the same city.-Ibid. dlxxvi. If a divorced woman be desirous of removing with her child out of a city, she is not at liberty to do it; but yet if she remove with her child out of a city and go to her native place where the contract of her marriage was executed, in this case her removal is lawful.-Hidayah, vol. i, page 390. If a divorced woman be desirous of removing with her child to a place which is not the place of her nativity, but in which her marriage contract was executed, she is not at liberty to do it. This is demonstrated by Kadúrí in his compendium, and also accords with what is related in the Mabsút.-Hidayah, vol. i, page 390. LECTURE Principle Principle. Principle. (e.) To the propriety of the woman carrying her child from one place to another, two points are essentially requisite, one, that she be a native of the place to which she goes; and the other, that her marriage contract has been there executed. This, however, means only where the places are considerably distant; but if they be so near that the father may go to see his child and return the same night, there is no objection to the wife going to the place with the child, and there remaining; and this whatever be the size and degree of the places, whether cities or villages; nor is there any objection to her removing from the village to the city or chief town of a district, as this is in no respect injurious to the father, and is advantageous to the child, since he will thereby become known and acquainted with the people of the place; but the reverse [that is, her removal from the city to a village] would be injurious to the child, as he would thereby be liable to acquire the low manners and mean sentiments of villagers; wherefore a woman is not at liberty to carry her child from a city to a village.-Hidáyah, vol. i, page 391. DLXXVII. There is also no objection to her removing with the child from a village to the city or chief town of the district, the same being advantageous to the child, and in no respect injurious to the father.* DLXXVIII. If the child's mother be dead, and its hizánat or custody has passed to the maternal grandmother, she cannot remove the child to her own city, though the marriage had taken place there. Other women, than the grandmother, are like her in respect to the place of hizánat.* DLXXIX. When an umm-i walad has been emancipated, she has no right to take her child from the cityf in which the father is residing.* * Vide Fatáwá Alamgírı, vol. i, page 731.-B. Dig., page 436. † Arabic-Balad,' which means a city, town, district, country, habitstion or abode. LECTURE XVII. ON SALE. CASES respecting sales and purchases made by the Mussulmáns in British India are almost invariably decided according to the Regulations and Acts of the present Government of the country. I shall, therefore, give here only those rules of sale as are peculiar to the Muhammadan law. Sale is the exchange of property for property with the mutual consent of the parties." Hence, Sale is of four kinds : commutation of goods for goods, of money for money, of money for goods, and of goods for money.† Sale defined. DLXXX. Sale is contracted by declaration and Principle. acceptance (a), when these are expressed by two Essentials terms in the past tense (b).-Hidayah, Arabic, vol. of sale. iii, page 1. (a). The speech of the first of the contracting parties is termed declaration or tender (íjáb), and that of the other speaker, acceptance (kabúl). (b). As when one of the two (contracting parties) says, "I have sold," and the other, "I have bought;" inasmuch Example. as sale is the taking place of transfer. -Hidayah, Arabic, vol. iii, page 1. So the expression" I am contented with this," or "I have given you for this," or "take it for this " used by him (i.e., one of the contracting parties) means the same as his saying: "I have sold," or "I have bought;" because it indicates the meaning of it (i.e., the sale), and it is the mean * Hamilton's Hidayah, vol. ii, page 360. LECTURE ing to which regard is to be had in such contracts. Hence XVII. it may be contracted by mutual surrender (tuátí) of goods of great as well as of small value, and the same is valid by reason of mutual consent.-Ibid. Principle. Principle Principle. DLXXXI. .If either of the contracting parties make the declaration of sale, then in the same meeting it is optional with the other to accept it if he chooses, or to reject it if he does not choose. If either the buyer or seller should send a letter or a message to the other, the other (person) has the power of suspending his acceptance or refusal until he leave the place of meeting where he received such message or letter.-Hidayah, vol. ii, page 362. DLXXXII. When declaration and acceptance are absolutely expressed without any stipulations the sale becomes binding, and neither party has the power of retracting, unless in the case of a defect in the goods, or their not having been inspected.* Ibid, page 363. DLXXXIII. The subject and consideration of a sale must be determinate so as not to admit of future contention regarding the meaning of the contracting parties; but when the uncertainty is removed prior to the actual arrival of the period stipulated for the sale becomes again valid.† DLXXXIV. The subject of the sale must also be in actual existence at the period of making the contract, so as to be susceptible of delivery, either immediately or at some future definite period.‡ Hence,— *These will be hereafter mentioned: Vide pages 499, 501. † See Jámi-ur-Ramúz. Hidayah, vol. ii, pages 449–451. It is essential to the validity of every contract of sale that the subject of it and the consideration should be so determinate as to admit of no future contention regarding the meaning of the contracting parties.-Macn. M. L., Chap. iii, Princ. 13. ‡ Vide Hidayah, vol. ii, pages 449 & 1516, and also the following page. It is also essential that the subject of the contract should be in actual existence at the period of making the contract, or that it should be susceptible of delivery, either immediately or at some future definite period.-Macn. M. L., Chap. iii, Princ. 14. |