LECTURE

X.

Principle.

Principle.

(9.) A man appoints a woman his agent to contract him in marriage, and she does so to herself, this is not lawful.-Fatáwá Alamgírí, vol. i, p. 415.-B. Dig., page 76.

A woman appoints a man to marry her to himself, and he says, "I have married such an one to myself," the marriage is lawful, even though he should not add, “I have accepted."-Ibid.

A man directs another to contract him in marriage, and he does so to his own little daughter, or to the little daughter of his brother (he being her guardian), this is not lawful. So also with regard to any other for whom he has power to act without her authority. But if he should marry the man to his grown-up daughter with her own consent, though it is stated in the Asal that, according to Abú Hanifah, the marriage would not be lawful, unless assented to by the husband, yet in the opinion of the other two it would be lawful: and if the woman were the agent's grown-up sister, and he had married his principal to her with her own consent, the marriage would be lawful, without any difference of opinion.-Fatáwá Alamgírí, vol. i, page 415.-B. Dig., page 77.

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 Hanifah. 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 Alamgirí, vol. i, pp. 420 & 421.-B. Dig., pp. 83 & 84.

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,t 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 aa 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 Inayah, vol. ii, page 52.

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