XI.

CCXCVI. If the Wali (guardian) of a woman LECTURE become surety for her dower, it is approved, because he is competent to such responsibility, (that Principle. is, to take such obligation upon himself,) and of surety he is surety in a thing which is a legal subject of for dower. bail, (namely, the dower,) since that is a debt, in which bail is approved and the woman is afterwards at liberty to require her dower either of her husband or of her guardian, as in all other cases of bail and if the guardian pay the dower, he shall take the same from the woman's husband, where he has become surety at his desire, as is the invariable rule in bail. The bail is in like manner approved; if the wife be an infant (k).-Hidayah, vol. i, page 149.

.

(k.) When a person has married his daughter to a man, whether she be an infant, or an adult virgin, or insane, and has become surety on behalf of the man for the dower, the suretyship is valid, and the woman has her option of suing the husband or the guardian when she is legally competent to sue; whereupon the guardian, after he has paid, may have recourse against the husband if he became surety by his direction.-Fatáwá Alamgírí, vol. i, page 460.—B. Dig., page 140.

When a man has married his infant son to a woman, and become his surety for the dower, and the transaction has taken place while the father was in good health, the suretyship is valid if accepted by the woman; and if the father should pay the dower while in health, he has no right to reimbursement from the son, on a favourable construction. of law, unless there was a condition in the original security that he should be entitled to such reimbursement. The woman, however, may claim the dower from the guardian (that is the father), but she is not entitled to claim it from her husband (the son) till he attains to puberty; and when he arrives at that state, she may demand it from either of them at her pleasure. When a son is adult, and his father, while in health, becomes surety for him, without his authority, and then dies, and the woman takes the dower from his estate, his heirs have no right of recourse against the son, according to general agreement. Insane persons are

XI.

LECTURE like minors in this respect. All this when the suretyship is effected in a state of health; but when it is given in a death-illness, it is void.-Fatáwá Alamgírí, vol. i, page 460.-B. Dig., page 140

Principle.

Principle.

CCXCVII. A woman is not entitled to any dower under an invalid marriage judicially dissolved before consummation; in case of consummation, however, she is entitled to her proper dower (mahri-misl), but if dower was already specified, and was less than the former, then she is not entitled to more than the specified dower (1).

(7.) If the Kází separate a man from his wife before cohabitation, on account of their marriage being invalid, the woman is not entitled to any part of the dower, because, where the marriage is invalid, no obligation with respect to dower is involved in the contract, as that, in such a case, is also null; nor is the dower held to be due on any other account than the fruition of the connubial enjoyment, which is not found in the present instance. In the same manner, no dower is due after khalwat-i-sahíh, or complete retirement, because, on account of the invalidity of the marriage, the law does not consider retirement as indicating the commission of the carnal act, and, consequently, it does not stand as such.-Hidayah, vol. i, pages 145-147.

CCXCVIII. Right to dower is in danger of dropping altogether, by apostacy of the wife, or by her kissing her husband's son with desire; but this danger is removed by consummation, which is an actual delivery of the exchange for dower. Hence dower is said to be confirmed and binding, by comsummation, or by its substitution, a valid retirement, or by death, which by terminating the marriage, puts an end to all the contingencies to which it is exposed.— Inayah vol. ii, page 55.-—B. Dig., pages 91 & 92.

ANNOTATIONS.

ccxcvii. If a man engage with a woman in an invalid marriage, and have carnal connexion with her, she is in this case entitled to her proper dower; but she is not entitled to more than the specified dower.-Hidayah, vol. i, page 146.

LECTURE XII.

ON FOSTERAGE AND NASAB,* OR PARENTAGE.

different kinds of.

FOSTERAGE, with respect to the prohibitions occasioned Fosterage, by it, is of two kinds: 1st,-where a woman takes a strange child to nurse, by which all future matrimonial connection between that child and the woman, or her relations within the prohibited degrees, is rendered illegal; 2nd,-where a woman nurses two children, male and female, upon the same milk, which prohibits any future matrimonial connection between them,f-they being related to each other as brother and sister.

CCXCIX. Illegality is induced by sucking, Principle. whether it be little (a) or much, provided that it take place within the proper period (b).‡

(a.) A little, however, must be understood as what is known to reach the stomach.‡

(a.) Prohibition is attached to fosterage, in whatever degree it be found within the usual period of infants subsisting at the breast. Our doctors support (this) their opinion by the authority of the sacred text, God saying, in the Kurán, "Your mothers, who have suckled you, are prohibited unto you;" and also upon a precept of the Prophet, that" whatever is prohibited by consanguinity, is also prohibited by fosterage," where no distinction is made. between a smaller (b) or a greater degree of it.-Hidáyah, vol. i, page 188.

"Nasab," the term is commonly restricted to the descent of a child from its father, but it is sometimes applied to descent from the mother, and is occasionally employed in a larger sense to embrace other relationships.-B. Dig., page 389, Note.

† Hidayah, vol. ii, page 187, Note.

Fatáwá Alamgírí, vol. i, page 483.-B. Dig., page 193.

LECTURE

(b.) The period of fosterage is thirty months according XII. to Abú Hanifah. The two disciples hold it to be two years, and the same is the opinion of Sháfií.-Hidáyah, page 188.

Principle.

Principle.

Principle.

A general principle.

(b.) The period of sucking, according to a saying of Abu Hanifah, is thirty months, though the disciples have said that it does not extend beyond two years. Though a child has been weaned within the period, yet, if again put to the breast before its expiration, that would be sufficient to occasion the prohibition by fosterage, as the infant has been actually suckled within that period. This seems to be clear according to our doctrines, and the Fatwa is stated in the Yenábíah to be in accordance with it.*

CCC. All are agreed that the period of suckling, so as to establish a right to hire on the part of the nurse, is two years.*

CCCI. If a child continue to suck after the proper period of fosterage is elapsed, prohibition is not established. A child's forsaking the breast before the expiration of the period of fosterage is not regarded (c.)-Hidayah, vol. i, page 190.

(c.) That is to say, if a child withhold from taking its milk before the period of fosterage has elapsed, and there be still milk in the mother's breast, and any other infant suck the milk before the expiration of that period, in this case prohibition by fosterage is established between those children.-Hidayah, vol. i, pages 190, 191. Hence,—

CCCII. It is to be observed as a rule thatwhen a male and female infant suck from one breast, they are prohibited to each other in marriage, because they have one common mother.-Hidayah, vol. i, page 193.

CCCIII. Persons prohibited to each other in marriage by reason of consanguinity are also (with

*Fatáwa Alamgírí, vol. i, page 483.-B. Dig., page 193.

some exceptions*) prohibited by reason of fos- LECTURE terage.†

Consequently,

XII.

CCCIV. It is not lawful for a man to marry the Principle. wife of his foster father, or of his foster son, (in the same manner as he is prohibited from marrying the wife of his natural father or son), because of the tradition before quoted.-Hidayah, page 192.

CCCV. It is not lawful for a male to marry Principle. the husband's sister of the woman who has suckled him, as she is his paternal aunt by fosterage.--Ibid, page 193.

CCCVI. It is not lawful for a female to marry Principle. any of the sons of the woman who has suckled her, because they are her brothers, nor the sons of those sons, because they are her nephews.-Ibid.

CCCVII. To the suckling, both his foster parents Principle. and their ascendants and descendants, either by natural descent or fosterage, are all prohibited (d).‡

(d.) So that if his nurse should have already borne, or should hereafter bear, a child to the same or to another man, whether before the nursing or after it, or should have nursed another infant; or if the man have a child by another woman, whether before this nursing or after it, or such woman should nurse another infant on his milk,

ANNOTATIONS.

ccciii. Whatever is prohibited by consanguinity is so likewise by fosterage, according to the saying of the Prophet (already quoted).— Hidayah, vol. i, page 191.

* See ante, page 365.

It is a rule that whatever is prohibited by reason of consanguinity is prohibited by reason of fosterage; but as far as marriage is concerned, there are one or two exceptions to this rule; for instance, a man may marry his sister's foster mother, or his foster sister's mother, or his foster son's sister, or his foster brother's sister.-Macn. M. L., Chap. VII, Princ. 23.

+ Fatáwá Alamgírí, vol. i, page 484.-B. Dig., page 194.