XI. of her husband, as she has dropt her right by agree- LECTURE ing to make her dower mowajjal.-Hidayah, vol. i, page 150. CCLXXV. Dower is confirmed by one of three Principle. things, consummation, a valid retirement, and the death of either husband or wife; and that, whether the dower be named, or be the proper dower (mahr-imisl). After this no portion thereof is dropped, except by relinquishment by the rightful party.*-Fatáwá Alamgirí, page 428.-B. Dig., page 96. CCLXXVI. In the case of dower being named Principle. or mentioned in the contract, half of it becomes due to the wife upon her being divorced before consummation or valid retirement (a), while the whole thereof becomes receivable upon her being divorced after consummation or valid retirement (b), or on the death of her husband as well as of herself (c). (a.) Half of it (that is half of the dower) named, becomes due upon divorce taking place before consummation or valid retirement.-Jámi-ur-Rawúz, vol. ii, page 261. (b, c.) The dower named or mentioned (in the contract) is due upon divorce after consummation as well as upon the death of either party. And half of it (i.e., the dower named) becomes due upon divorce before consummation or valid retirement.-Sharh-ul-Vikáyah, vol. ii, page 343. (c.) If the dower is named, it becomes due upon the death of any of them two, that is husband and wife; because death is like consummation with respect to dower.-Ibid. ANNOTATIONS. cclxxiv. When the dower is mowajjal, or deferred, to a known o definite term, and the term has arrived, she cannot deny herself for the purpose of obtaining payment of her dower, according to the Principles of Abú Hanifah and Muhammad.-B. Dig., page 128. *The portion in italics is omitted by Mr. Baillie. XI. LECTURE (a.) If the husband, in the case now stated, were to divorce his wife before consummation, or vaild retirement* [khalout-i-sahih], she, in this case, receives half of her specified dower,-God having commanded, saying, "If ye divorce them before ye have touched them, and have already settled a dower on them, ye shall pay them one-half of what ye have settled."-Hidayah, vol. i, page 124. Principle. (b.) If a man retire with his wife, and there be no legal or natural obstruction to the commission of the carnal act, and he afterwards divorce her, the whole dower in this case goes to her.-Ibid, page 127. (b, c.) If a person specify a dower of ten or more dirms, and should afterwards consummate his marriage, or be removed by death, his wife, in either case, has a claim to the whole of the dower specified, because, by consummation the delivery of the return for the dower, namely, the Buza, or woman's person, is established, and therein is confirmed the right to the consideration, namely, the dower; and on the other hand, by the decease of the husband, the marriage is rendered complete, and every thing becomes established and confirmed by its completion, and consequently is so with respect to all its effects.-Hidayah, vol. i, pages 123 & 124. But, CCLXXVII. In the case of the dower not being mentioned in the contract, or being stipulated not to be paid, the wife is entitled to only a present (mutat)-if divorced before consummation or valid retirement, and to the proper dower (mahr-i-misl) upon her being divorced after consummation or valid retirement, as well as at her own or her husband's death, either before or after consummation or valid retirement (d). * Valid retirement solus cum solâ, where there is no legal or natural impediment to the consummation of the carnal act. It is also translated by 'complete retirement.' Vide post, p. 357. † A mutat, or present, consists of three articles of dress-a kumees, or shirt; a mulhaffat, or outer garment, and a mikna, or head-dress, of medium quality, neither very good nor very bad. This is according to their practice, but in ours regard is had to our own usage. And if the husband should XI. (d.) In the case of dower not being named, the wife is LECTURE entitled only to a present (mutat), if divorced before consummation; and to the proper dower, if divorced after consummation. This (proper dower) is also due, if either of them die before (or after) consummation.--Jámi-ur-Ramúz, vol. ii, page 262. Marriage is valid even though the dower be not mentioned or it be stipulated not to be paid. Proper dower (mahr-i-misl) is due in all these (circumstances) upon consummation or death; but a mutat (present), such as would not exceed half of the proper dower, nor be less than five (dirms), is receivable (by her) upon divorce before consummation or valid retirement.-Shárh-ul-Vikáyah, vol. ii, pages 343 & 344. If a man marry a woman without specifying any dower, or on the express stipulation that she shall not have a dower, and he either have carnal connexion with her, or die, she is, in that case, entitled to her mahr-i-misl, or proper dower.-Hidáyah, vol. i, page 125. When one of the parties to a marriage, in which there was no mention of dower, has died, the right to the full mahr-i-mithl, or proper dower, is perfected, whether the woman be free or a slave, without any difference of opinion.-B. Dig., page 102. If a man marry a woman without any specification of dower, or on condition of there being no dower, and divorce her before carnal connexion, the woman, in this case, receives a mutat, or present;-God having commanded, saying, "give her a present, the rich according to his wealth, and the poor according to his poverty: "—Hidáyah, vol. i, page 125. It is laudable to bestow a mutat, or present, upon every. woman divorced by her husband, excepting two descriptions give her the value of the articles in dirhms ordinárs, she may be compelled to accept it. But it is not to exceed half the muhr-i-mithl, or dower of her equals, nor fall short of five dirhms. Regard is also to be had to the woman's condition, for the present comes into the place of the proper dower. If, then, she be of low degree, she is to have a mutat, or present, of kirbas, or linen; if of middle rank, one of kuzz, or spun silk; and if of high station, one of abreshom, or silk. But regard should be had to the man's condition, according to the Hidayah and Kafee, while according to the other authorities the conditions of both should be taken into consideration and the Fatwa is said to be in accordance with this view.-B. Dig., page 97. XI. LECTURE of women, namely, one whose dower has been stipulated, and whose husband divorces her before consummation,-and one whose dower has not been stipulated, and who is also divorced before consummation; for in their behalf a present is not merely laudable, but incumbent.*-Hidayah, vol. i, page 129. Principle. Principle. And when none has been named in the contract, or he has married her with a condition that she shall have no dower, she is entitled to her proper dower if the marriage be consummated or one of the parties happens to die; and to a mutat, or present, if repudiation takes place before consummation or a valid retirement.-Fatáwá Alamgírí, vol. i, page 428.-B. Dig., page 96. CCLXXVIII. If a man marry a woman without naming any dower, and the party should afterwards agree to a dower and specify its amount, such dower goes to the woman, if the husband either consummate the marriage or die; but if he divorce her before consummation, she receives only a present (ƒ). Hidayah, vol. i, page 126. (f.) So also, when no dower has been specified in the contract, but the parties afterwards arrange it by mutual agreement, though she has a right to the whole if the marriage be consummated, or her husband happens to die, yet if she be repudiated before consummation, it is only a mutat, or present, that she is entitled to, and not half of the dower subsequently agreed upon.-Fatáwá Alam-gírí, pages 427 & 428.-B. Dig., page 96. CCLXXIX. When dower has been assigned by the Judge or by the husband after contract, and the husband repudiates his wife before consummation, * There are three kinds of mutat, or present :-1st-Incumbent, which is due to every woman repudiated before consummation, for whom no dower has been assigned; 2nd-Laudable, which is conferred on any woman repudiated after consummation; and 3rd-What is neither incumbent, nor laudable, which is applicable to women repudiated before consummation, to whom dower has been regularly assigned. So that it is laudable to confer a mutat on all repudiated women except the last, namely, those for whom dower has been assigned, and who are repudiated before consummation.-Fatáwá Alamgírí, vol. i, page 429.-B. Dig., page 98. XI. she is entitled only to a mutat, or present, instead of LECTURE balf of the specified dower according to Abú Hanífah and Muhammad.* CCLXXX. It is only when the husband is him- Principle. self the cause of the separation that he is liable for a mutat, or present (g).* (g) As for instance, when he repudiates his wife, or is Example. separated from her by reason of íla, or lián, or jabb, or impotence, or for apostacy and rejection of Islám, or kissing his wife's mother or sister with desire. And he is not liable when the cause of separation is on the part of the wife, as for instance, when it is her apostacy and rejection of. Islám, or when she kisses her husband's son with desire, or exercises an option of puberty, emancipation, or inequality. * CCLXXXI. In every case in which there is no Principle. liability for mutat, there is none for half the dower, if dower were specified; and in every case in which a contract requires the proper dower, a mutat is due if the wife is repudiated before consummation.* CCLXXXII. There is no mutat, or present, for Principle. a woman whose husband has died leaving her surviving him, whether dower were assigned to her or not, and whether the marriage had or had not been consummated. And in like manner, in any case of invalid marriage, when a Judge separates the parties before consummation, or a valid retirement, or even after a valid retirement (h) when the husband denies consummation, there is no mutat* or mutah. (h.) Retirement is valid or complete when the parties meet together in a place where there is nothing in deceney, law, or health to prevent their matrimonial intercourse.† * Fatáwá Alamgírí, vol. i, pages 428 & 429.-B. Dig., pages 96-98. If a man retire with his wife whilst one of them is sick, or fasting in the month of Rumzán, or in the Ibrám of a pilgrimage, whether obligatory or |