X. mad with lucid intervals, his guardianship does not LECTURE cease, and his acts during a lucid interval have legal operation. According to one report, the Imám fixed continuance for a month as the criterion for determining the character of the madness, and decrees are given accordingly.-Fatáwá Alamgírí, vol. i, page 401.-B. Dig., page 48. CCXXXIV. When a son has arrived at puberty, Principle. a lunatic with lucid intervals, or a confirmed madman, the father's guardianship over his person and property continues.-Ibid. CCXXXV. When a father becomes a confirmed Principle. lunatic, or mad with lucid intervals, the guardianship is not established in his son, so far as relates to his property; but it is established in him for the purpose of contracting the father in marriage, according to Abú Hanífah and Abú Yusuf. And this is correct.-Fatáwá Alamgírí, vol. i, page 401. -B. Dig., page 49. CCXXXVI. An executor has no authority to Principle. contract a boy or girl in marriage, whether he be appointed by the father or not, except when the executor happens to be the natural guardian, and then he has the power by virtue of his guardianship, not of his executorship.-Fatáwá Alamgírí, vol. i, page 400.-B. Dig., page 47. CCXXXVII. A minor or an insane person has Principle. no power of guardianship, and an infidel cannot be guardian to a muslim, whether male or female; nor a muslim to an infidel, whether male or female. It is said, however, that it ought to have been adtled, 'unless the muslim be the master of an infidel bond woman, or be the Sultán.' An infidel X. LECTURE fligacy is no impediment to guardianship.—Fatáwá Alamgírí vol. i, page 400.-B. Dig., pages 47 & 48. Principle. Principle. CCXXXVIII. If a female on attaining puberty contracts herself in marriage without the consent of her guardian, and the match be unequal,* her guardian has a right to object with a view to set the marriage aside.† CCXXXIX. To make a separation for this cause, that is, inequality, it must be done before the Judge; and, without cancellation by a Judge, the marriage between the parties is not cancelled. The separation, however, is not a repudiation; so that if the husband has not consummated with her, she is not entitled to any part of the dower. But if he have consummated, or if a valid and complete retirement has taken place, he is liable for the whole of the dower specified, and for maintenance during the iddat, the observance of an iddat being incumbent on the woman.-Fatáwá Alamgírí, vol. i, p. 412.— B. Dig., p. 67. When a woman has married a man who is not her equal, and the Judge, after consummation, has decreed a separation between the parties at the suit of the guardian, awarding payment of the dower against the man, and the observance of an iddat upon the woman, and subsequently to all this the man marries her again during the iddat, without the consent of her guardian, and the Judge again separates them before a second consummation, the woman is entitled to a second full dower, and must observe another iddat according to Abú Hanifah.-Fatáwá Alamgírí, vol. i, page 412.-B. Dig., page 68. * See ante, pages 299 & 300. † A woman, having attained the age of puberty, may contract herself in marriage with whomsoever she pleases; and her guardian has no right to interfere if the match be equal.-Macn. M. L., Chap. VII, Princ. 14. If the match be unequal, the guardians have a right to interfere with a view to set it aside.-Ibid, Princ. 15. But in both the preceding cases, the guardians should interfere before the birth of issue.-Macn. M. L., Chap. VII, Priuc. 14 to 17. 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. (n.) A man directs an agent to marry him to a white Illustrawoman, and he marries him to one that is black, or vice tion. 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 mar riage 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. |